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).
BTW, have you replied to rustbucket?
Good brio! You should consider entering that one for the Wormwood Award.
My posts don't overlook the fact that the Confederate Congress did not establish the Confederate Supreme Court, despite Jefferson Davis' charge to them that they do so. Davis' call for a Supreme Court
Nor did the district courts meet on a regular basis.
Here is an example for one particular CSA District Court (one of many found by thatdewd): Records of the Confederate States District Court for the Southern Division of the District of Alabama. Textual Records (in Atlanta): Minute books, 1861-65. Dockets, 1861-65. Case files, 1861-64. Records concerning naturalization, 1861-64. Records concerning garnishment and sequestration cases, 1861-65. Records of the clerk of the court, 1861-64. Final record books, 1861-65.
And when habeas corpus was suspended by the confederate congress, the process for identifying and jailing the violators was left in the hands of appointed commissioners not subject to judicial review.
What judicial review is there when habeas corpus is suspended?
So your judiciary was a paper tiger, a judiciary in name only with no power to rein in the excesses of the Davis regime.
Heck, the US courts couldn't/didn't rein in Lincoln or his military (until after Lincoln was dead). I'd be careful about being smug, if I were you.
Note the following excerpt about the relative power of the US court system and a Confederate District Court judge (from a Picayune article):
Can Civilians be Tried by Military Courts?This is no longer a question among us; the military courts of the Federal army having exercised the power to do so, without rebuke or effective resistance from the civil tribunals. Not so in the Confederacy. Below we give an article from the Houston, Texas, Telegraph, reviewing the decision of Judge Moise of the C. S. District Court of Louisiana, who has discharged from custody a W. McKee, charged with cotton frauds on Red River, last spring. Judge Moise seems quite independent of the military power.
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To: WhiskeyPapa
It's interesting how all the southron contingent can cite chapter and verse of what they see as the abuse of poor Clement Vallandigham and are totally silent on the subject of John Minor Bott. Who is he, they might ask? Why he is a former United States Congressman who dared to speak in opposition to Jefferson Davis and was held, without trial or charges, in a Richmond jail for the majority of the war. No criticism allowed concerning him, is there?
54 posted on 02/12/2003 12:58 PM CST by Non-Sequitur [ Post Reply | Private Reply | To 38 | View Replies | Report Abuse ]
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To: Non-Sequitur
So you're saying that former Congressman Botts was a political prisoner on more than one occasion. Was he ever tried for any of his alleged 'crimes'?
Botts was arrested in March 1862 and released in April 1862. In your earlier notes you left out the fact that Botts was released in April 1862. This made it seem as though he was in prison for years.
Shortly after his arrest in March 1862, Botts requested and got an audience with Confederate General Winder. General Winder told Botts what he had been arrested for -- another who had been arrested named Botts as the head of an organization that was trying to destroy the Confederacy. Botts denied it, and a Court of Inquiry was convened. Botts handled his own defense at this court. The recommendation of the Court of Inquiry was that he be released on parole. He was released in April 1862 on that parole by order of General Winder.
Do you still claim he had no trial and didn't know the charge against him? He did know the charge against him on his first arrest, and he did have a trial resulting from this arrest, after which he was released. I don't know all the details of the second arrest and subsequent release. Perhaps this is the occasion of which you speak.
197 posted on 02/13/2003 9:06 PM CST by rustbucket [ Post Reply | Private Reply | To 192 | View Replies | Report Abuse ]
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To: Non-Sequitur; GOPcapitalist
Concerning the arrests of Congressman Botts by the Confederates. I now have tracked down the details of his second arrest. I relayed the particulars of his first arrest, trial, and release in post 197.
A warrant was issued for the arrest of Botts on Monday, October 12, 1863, by order of Major General Jeb Stuart. Botts was arrested about 10:30 AM that morning and discharged at 5 PM the same day. That is the extent of his second arrest and release. Officially he was released because there was no charge against him. Botts was not interred in prison for the duration of the war. Botts made a loud squeak about this second arrest. Botts' letter that was published in the Richmond Examiner in December 1863 apparently had been written on October 18, 1863, some days after he had been released.
Although there was no charge contained in the warrant, Botts claimed that he had been told semi-officially that he was arrested because he had entertained General Meade and other Union generals. However, he also admitted to having been seen carrying a gun in the vicinity of the Union and Confederate lines. Botts said he was carrying the gun for someone else.
If this is the extent of the charge you have against Southern justice, non-seq, then it is back to the drawing boards for you. Your example was full of holes.
198 posted on 02/13/2003 10:39 PM CST by rustbucket [ Post Reply | Private Reply | To 197 | View Replies | Report Abuse ]
This is the objectionable, antihistorical statement.
Can you figure out which part is antihistorical?
As well as (hint, hint) flatly incorrect, and 180 degrees off?
One last chance.
This is the objectionable, antihistorical statement.
Yet you can't point out what is 'antihistorically objectionable' about it. How droll.
Can you figure out which part is antihistorical? As well as (hint, hint) flatly incorrect, and 180 degrees off? One last chance.
So? -- Spit it out wiseguy. -- Two bits you can't make your own case.
The states' rights movement and the constitutionalist impulse has always been collocated with the Southern States and the Southern Democrats, until they left the Party in the Goldwater revolution. They were Antifederalists, Jeffersonians, Jacksonians, and Grangers before they were Klukkers -- well, actually, the Grange and the Klan coexisted on the same population base. But they were the people who used States' Rights in the 19th century, as in the Cruikshank case, to free themselves from federal and Freedman's Bureau interference in Southern politics and to impose white supremacy and Jim Crow.
The Hobbesian, omnipotent State which was envisioned as an irresistible force for improvement was precisely what the American Revolution overthrew. American revolutionaries drew up the Articles of Confederation in 1777, and that became the Jeffersonian model: limited government and a free yeomanry.
Hamilton brought back Hobbesian, strong-state government. The federalists had many motives, some altruistic and others very practical (such as owning quantities of federal bonds), but their program was one of replacing the Jeffersonian Articles with a strong-government model that would have substantially amalgamated the States and the Peoples of the States into "we the People", as the Preamble still expresses it.
That phrase was the essence of Hamiltonianism. One people, one government (with the states lingering as glorified departments or geographical subdivisions of the State of United America), and a strong, infrastructure-building government that would defend the dollar, pay its debts, enable commerce, and in all ways make straight the way of the business interests of the big seaboard towns. Except that a funny thing happened on the way to Hamilton's coronation: he got shot down in the Constitutional Convention and had to accept numbers of compromises with the (majority) Antifederalists, in order to secure ratification.
I'll leave it to Jackson Turner Main, author of The Antifederalists, to trace how the ideas that became Whiggery, the American System, Lincolnism, National Greatness Republicanism (McKinleyism), and the Wall Street Wing of the GOP sprang from the tax-and-spend ideas of Alexander Hamilton and John Jay. (Madison is harder to account for, since he crossed the aisle in midlife and joined the Jeffersonians.)
But the Hamiltonian Federalists were the party who were compelled by the Antifederalists to accept the Second, Ninth, and Tenth Amendments, which are the very guts of States' Rights.
The Democratic Party stood on the rock of the Bill of Rights and easy money for 140 years, whereas the Whigs and Republicans stood on government activism, infrastructure programs, and hard money. And sucking the continent dry of wealth -- but any business party would have done that, no matter their politics.
The Democrats changed their basic principles in 1928 when the urban ethnics (many of them led by Fabians and liberals) took control of the Democratic Party from the Grange and the Klan. The Klan sent IIRC something like 625 delegates to the 1924 or 1928 Democratic convention. After the change, the Democratic Party became eaten up with liberals, urban Communists and Socialists and their college-educated brats and became a Marxist, anti-American party, in love with State power -- rather like the old yacht-club Republicans, only worse. The old rural Democrats hung on for another generation, clinging to the Democratic Party's lingering identification with the Common Man, even though it was becoming more vanguardist and socialist as time passed, until the civil rights movement (which was really a call on the Party by urban blacks) displaced them and drove them out of the Party.
But in the interim, the old, agrarian, Jeffersonian Democrats continued voting "yaller-dog" tickets for FDR and the new, urban Democrats until the liberals attacked them over civil rights and drove them out of the Party to the GOP instead. They brought their States' Rights principles and agenda with them, which is now carried forward by two Republican-appointed justices, Chief Justice Rehnquist and Justice Thomas.
So now the Hobbesians are the Democrats and the Yacht Club ("big-government conservatives") Republicans, and the Jeffersonian States'-Righters are crowded into what's left of the conservative, Congressional wing of the GOP.
So there you have it.
GOPcap, guys, check me. I'm done.
tpaine, pay me. Scripsi, scripsi!
lentulusgracchus wrote: This is the objectionable, antihistorical statement.
So? -- Spit it out, [your proof] wiseguy. -- Two bits you can't make your own case.
The states' rights movement and the constitutionalist impulse has always been collocated with the Southern States and the Southern Democrats, until they left the Party in the Goldwater revolution.
Yep, thats my point. - The states rights movement in america has always had the concept of an 'all powerful state', one that can ignore our constitutions restrictions.
They were Antifederalists, Jeffersonians, Jacksonians, and Grangers before they were Klukkers -- well, actually, the Grange and the Klan coexisted on the same population base. But they were the people who used States' Rights in the 19th century, as in the Cruikshank case, to free themselves from federal and Freedman's Bureau interference in Southern politics and to impose white supremacy and Jim Crow.
So? You aren't refuting my point, You're making it by admitting they were ignoring our constitution with "Jim Crow".
The Hobbesian, omnipotent State which was envisioned as an irresistible force for improvement was precisely what the American Revolution overthrew. American revolutionaries drew up the Articles of Confederation in 1777, and that became the Jeffersonian model: limited government and a free yeomanry. Hamilton brought back Hobbesian, strong-state government. The federalists had many motives, some altruistic and others very practical (such as owning quantities of federal bonds), but their program was one of replacing the Jeffersonian Articles with a strong-government model that would have substantially amalgamated the States and the Peoples of the States into "we the People", as the Preamble still expresses it. That phrase was the essence of Hamiltonianism. One people, one government (with the states lingering as glorified departments or geographical subdivisions of the State of United America), and a strong, infrastructure-building government that would defend the dollar, pay its debts, enable commerce, and in all ways make straight the way of the business interests of the big seaboard towns. Except that a funny thing happened on the way to Hamilton's coronation: he got shot down in the Constitutional Convention and had to accept numbers of compromises with the (majority) Antifederalists, in order to secure ratification.
None of this is to the issue.. You're lecturing, and belaboring the obvious.
I'll leave it to Jackson Turner Main, author of The Antifederalists, to trace how the ideas that became Whiggery, the American System, Lincolnism, National Greatness Republicanism (McKinleyism), and the Wall Street Wing of the GOP sprang from the tax-and-spend ideas of Alexander Hamilton and John Jay. (Madison is harder to account for, since he crossed the aisle in midlife and joined the Jeffersonians.) But the Hamiltonian Federalists were the party who were compelled by the Antifederalists to accept the Second, Ninth, and Tenth Amendments, which are the very guts of States' Rights.
Pure speculation on your part as to specific amendments.
The states rightists of that day by and large opposed the very concept of any U.S. bill of rights, as they were convinced, as they are to this day, that individual states retain full sovereign 'rights' over their own citizens, other than those enumerated in their own constitutions.
The Democratic Party stood on the rock of the Bill of Rights and easy money for 140 years, whereas the Whigs and Republicans stood on government activism, infrastructure programs, and hard money. And sucking the continent dry of wealth -- but any business party would have done that, no matter their politics. The Democrats changed their basic principles in 1928 when the urban ethnics (many of them led by Fabians and liberals) took control of the Democratic Party from the Grange and the Klan. The Klan sent IIRC something like 625 delegates to the 1924 or 1928 Democratic convention. After the change, the Democratic Party became eaten up with liberals, urban Communists and Socialists and their college-educated brats and became a Marxist, anti-American party, in love with State power -- rather like the old yacht-club Republicans, only worse. The old rural Democrats hung on for another generation, clinging to the Democratic Party's lingering identification with the Common Man, even though it was becoming more vanguardist and socialist as time passed, until the civil rights movement (which was really a call on the Party by urban blacks) displaced them and drove them out of the Party. But in the interim, the old, agrarian, Jeffersonian Democrats continued voting "yaller-dog" tickets for FDR and the new, urban Democrats until the liberals attacked them over civil rights and drove them out of the Party to the GOP instead. They brought their States' Rights principles and agenda with them, which is now carried forward by two Republican-appointed justices, Chief Justice Rehnquist and Justice Thomas.
Another windy & meaningless lecture which fails to address the subject at hand.
So now the Hobbesians are the Democrats and the Yacht Club ("big-government conservatives") Republicans, and the Jeffersonian States'-Righters are crowded into what's left of the conservative, Congressional wing of the GOP. So there you have it.
You've got to be kidding.. -- I have nothing from you but some unsupported drivel about 'forced amendments', and volumes of belabored 'wisdom'..
Whatta joke.
You've prove nothing about the socalled "objectionable, antihistorical" aspects of my statement.
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."
That 1863 bill was an indemnity bill. It did not say that what Lincoln did was legal. It took his unlawful, unconstitutional acts and provided him with a legal defense against prosecution for said unlawful, unconstitutional acts. One does not need indemnity from prosecution for lawful acts.
Moreover, it is absolutely clear that Farber was not talking about this act, but about the one I discussed, S-72. The Habeas Act of 1863 was passed on March 3, 1863. In your Farber quote, he states "In the special secession called by Lincoln, Congress ratified all of his orders relating to the milItia or armed forces." The cited special session was in 1861.
Read the whole book. Farber makes this extremely clear on page 138 where he states:
Moreover, Congress did ultimately endorse these actions. On August 5, it almost unanimously passed a bill declaring that "all the acts, proclamations and orders of the President" taken after Lincoln took office "respecting the army and navy of the United States, are hereby approved and in all respects legalized and made valid ... as if they had been issued and done under the previous express authority and direction of the congress of the United States." (The only negative votes came from five Democrats.)
Even here, Farber has the history wrong. The bill was passed on August 6, not August 5 as is made clear in the record of Congress that I quoted. On August 5, five democrats in the Senate voted against amending a bill to add the text that was subsequently passed in S-72. After the Senate acted on August 5, the bill had to go to the house on August 6. Final passage of the bill was in the House, not the Senate.
You're referring to 1861.
I got this e-mail from Dr. Farber.
"Dear Mr. Miller
-- Thanks for your note. Let me see if I can help clear up some of the confusion. As in many cases of the period, the opinion in ex parte Field has a lot of language setting out opposing arguments, which the judge later rejects. Here's the ultimate conclusion drawn by the Court:
"The principle established by these cases determines, the president has the power, in the present military exigencies of the country, to proclaim martial law, and, as a necessary consequence thereof, the suspension of the writ of habeas corpus in the case of military arrests. It must be evident to all, that martial law and the privilege of that writ are wholly incompatible with each other." I'm e-mailing you the full opinion, however, so you can judge for yourself.
In terms of the statutory authorization, the specific authorization for habeas suspension didn't pass until 1863 (see p. 159) But that authorization was retroactive in the sense that Congress gave immunity to the president and his subordinates for all previous arrests: The fourth section is as follows: '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, civil or criminal, pending or to be commenced, for any such seizure, arrest, or imprisonment made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of congress, and such defense may be made by the special plea or under the general issue.'
I'm also e-mailing you a Supreme Court opinion that deals with this statute.
More generally, the president's past military orders were ratified by Congress in the summer of 1861. The Prize Cases, for example, refer to the statute ratifying the blockade of the South (and thereby creating a state of war) :
"Since the capture [of the ships involved in the case], Congress has recognized the validity of these acts of the President. The Act of Aug 6, 1861, ch. 63, sec. 3, legalizes, among other things, the proclamations, acts and orders of the President respecting the navy.
This includes the blockades, and the orders respecting captures." (The statute is quoted on p. 138 of the book.) The dissent in the Prize Cases also states that Congress had recognized a state of war with the South:
"no civil war existed between this Government and the States in insurrection till recognized by the Act of Congress 13th of July, 1861" (my italics). As I say in the book, it is arguable that the language used by Congress in these laws had the effect of ratifying past military orders dealing with habeas, though Congress may not have intended this result. In any event, these various congressional actions make it clear that Congress approved of the war and authorized Lincoln to fight it."
Walt
dixiecrat ants at the picnic is more like it.
As you well know, he was still in prison facing a death squad for nearly a year after the war was over. You know this, shame on you for trying to mislead the lurkers again. As you well know (and even pointed out in the SAME post), the Supreme Court did not decide his case and free him until 1866. Your non-sequitur about "8 months later" was nothing more than a deception designed to mislead lurkers, and you know it. And so does everyone else since you so blatantly exposed yourself by almost immediately pointing out his release date a few lines later, LOL. Stop trying to mislead the lurkers, Wlat. What did they ever do to you to deserve such treatment?
He -did- advocate the violent overthrow of the government. Why is it exactly that you are stickng up for him?
He was -not- convicted of that, so who are -you- to proclaim it as a truth? Oh yeah, now I remember, you're one of those guys the Supreme Court warned us about, one of the threats to liberty that would render the Republic meaningless by your support of tyranny. I think I already pointed that out in a previous post. BTW, do you still consider the Constitution to be a "pact with the devil"?
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".
OK, almost. He was released in April 1866, which you did know, despite your evasive remarks. A year and a half then for Mr. Milligan, who was almost murdered by Lincoln's tyranny even after the tyrant was dead. He was being held for execution, do you really expect anyone to believe that he was out walking around prior to his case being decided?
You don't seem very familiar with the history.
LOL, my only errors were the spelling of his first name and a mis-remembered release date that was off by six months. Your errors are so numerous and deliberately deceitful that it brings nothing but shame upon your name to have thrown such an accusation at another.
[Walt] You're referring to 1861.
Of course I'm referring to 1861. The material you quoted, to which I responded, applies to 1861, and specifically to the special session of Congress called by Lincoln in 1861.
[ Walt 169 ]“In any event, if prior congresssional authorization was needed, it probably did exist. In the special secession called by Lincoln, Congress ratified all of his orders relating to the miltia 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.
The actual language is:
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.
[Walt quoting Farber] In terms of the statutory authorization, the specific authorization for habeas suspension didn't pass until 1863 (see p. 159) But that authorization was retroactive in the sense that Congress gave immunity to the president and his subordinates for all previous arrests: The fourth section is as follows: '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, civil or criminal, pending or to be commenced, for any such seizure, arrest, or imprisonment made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of congress, and such defense may be made by the special plea or under the general issue.'
That only gives Lincoln protection from prosecution for his prior acts. It does not declare them legal.
[Walt quoting Farber] More generally, the president's past military orders were ratified by Congress in the summer of 1861. The Prize Cases, for example, refer to the statute ratifying the blockade of the South (and thereby creating a state of war) :
We are talking about habeas corpus, not blockades.
"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." The Prize Cases.
"As soon as the news of the attack on Fort Sumter, and the organization of a government by the seceding States, assuming to act as belligerents, could become known in Europe, to wit, on the 13th of May, 1861, the Queen of England issued her proclamation of neutrality, 'recognizing hostilities as existing between the Government of the United States of American and certain States styling themselves the Confederate States of America.' This was immediately followed by similar declarations or silent acquiescence by other nations." The Prize Cases
"After such an official recognition by the sovereign, a citizen of a foreign State is estopped to deny the existence of a war with all its consequences as regards neutrals. They cannot ask a Court to affect a technical ignorance of the existence of a war, which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the Government and paralyze its power by subtle definitions and ingenious sophisms." The Prize Cases
[Walt quoting Farber] "Since the capture [of the ships involved in the case], Congress has recognized the validity of these acts of the President. The Act of Aug 6, 1861, ch. 63, sec. 3, legalizes, among other things, the proclamations, acts and orders of the President respecting the navy.
And we are still talking about habeas corpus and not the Navy. No act has ever recognized the 1861 suspension of habeas corpus as legal.
[Walt quoting Farber] This includes the blockades, and the orders respecting captures." (The statute is quoted on p. 138 of the book.) The dissent in the Prize Cases also states that Congress had recognized a state of war with the South:
This is equally irrelevant. We are talking about habeas corpus.
[Walt quoting Farber] "no civil war existed between this Government and the States in insurrection till recognized by the Act of Congress 13th of July, 1861" (my italics). As I say in the book, it is arguable that the language used by Congress in these laws had the effect of ratifying past military orders dealing with habeas, though Congress may not have intended this result. In any event, these various congressional actions make it clear that Congress approved of the war and authorized Lincoln to fight it."
[Walt quoting Farber] "Congress may not have intended this result."
Just how explicit does the Congress have to be? What is arguable about this? The bill says nothing about habeas corpus, and the congressional debate repeatedly makes explicitly clear it does not pertain to habeas corpus.
Senator 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.
What follows is the 1863 Habeas Corpus Indemnity Act. A primary purpose of this Act was to shield the persons carrying out the orders of the President from civil or criminal liability.
TEXT[IMAGES] (Page numbers in Congressional Globe)
Monday, March 2, 1863
Mr. Trumbull, from the committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof, submitted the following report:
The committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof, and the Senate's amendment thereto, having met, after full and free conference have agreed to recommend, and do recommend, to their respective houses that the Senate recede from their said amendment, and agree to the said House bill, amended to read as follows, to wit:
AN ACT relating to habeas corpus, and regulating judicial proceedings in certain cases. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof. And whenever and wherever the said privilege shall be suspended, as aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons detained by him by authority of the President; but upon a certificate, under oath, of the officer having charge of any one so detained, that such person is detained by him as a prisoner under authority of the President, further proceedings under the writ of habeas corpus shall be suspended by the judge or court having issued the said writ so long as said suspension by the President shall remain in force and said rebellion continue.
Sec. 2. And be it further enacted, That the Secretary of State and the Secretary of War be, and they are hereby, directed, as soon as may be practicable, to furnish to the judges of the circuit and district courts of the United States and of the District of Columbia, a list of the names of all persons, citizens of States in which the administration of the laws has continued unimpaired in the said federal courts, who are now, or may hereafter be, held as prisoners of the United States, by order or authority of the President of the United States or either of said Secretaries, in any fort, arsenal, or other place, as state or political prisoners, or otherwise than as prisoners of war; the said list to contain the names of all those who reside in the respective jurisdictions of said judges, or who may be deemed by the said Secretaries, or either of them, to have violated any law of the United States in any of said jurisdictions, and also the date of each arrest--the Secretary of State to furnish a list of such persons as are imprisoned by the order or authority of the President, acting through the State Department, and the Secretary of War a list of such as are imprisoned by the order or authority of the President, acting through the Department of War. And in all cases where a grand jury, having attended any of said courts having jurisdiction in the premises, after the passage of this act, and after the furnishing of said list, as aforesaid, has terminated its session without finding an indictment, or presentment, or other proceeding against any such person, it shall be the duty of the judge of said court forthwith to make an order that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged; and every officer of the United States having custody of such prisoner is hereby directed immediately to obey and execute said judge's order; and in case he shall delay, or refuse so to do, he shall be subject to indictment for a misdemeanor, and be punished by a fine of not less than five hundred dollars and imprisonment in the common jail for a period not less than six months, in the discretion of the court: Provide, however, That no person shall be discharged by virtue of the provisions of this act until after he or she shall have taken an oath of allegiance to the government of the United States, and to support the Constitution thereof; and that he or she will not hereafter, in any way, encourage or give aid and comfort to the present rebellion, or the supporters thereof: And provided, also, That the judge or court before whom such person may be brought, before discharging him or her from imprisonment, shall have power, on examination of the case, and, if the public safety shall require it, shall be required to cause him or her to enter into recognizance, with or without surety, in a sum to be fixed by said judge or court, to keep the peace and be of good behavior towards the United States and its citizens, and from time to time, and at such times as such judge or court may direct, appear before said judge or court to be further dealt with, according to law, as the circumstances may require. And it shall be the duty of the district attorney of the United States to attend such examination before the judge.
Sec. 3. And be it further enacted, That in case any of such prisoners shall be under indictment or presentment for any offence against the laws of the United States, and by existing laws bail or a recognizance may be taken for the appearance for trial of such person, it shall be the duty of said judge at once to discharge such person upon bail or recognizance for trial as aforesaid. And in case the said Secretaries of State and War shall for any reason refuse or omit to furnish the said list of persons held as prisoners as aforesaid at the time of the passage of this act within twenty days thereafter, and of such persons as hereafter may be arrested within twenty days from the time of the arrest, any citizen may, after a grand jury shall have terminated its session without finding an indictment or presentment, as provided in the second section of this act, by a petition alleging the facts aforesaid touching any of the persons so as aforesaid imprisoned, supported by the oath of such petitioner or any other credible person, obtain and be entitled to have the said judge's order to discharge such prisoner on the same terms and conditions prescribed in the second section of this act: Provided, however, That the said judge shall be satisfied such allegations are true.
Sec. 4. And be it further enacted, That any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress; and such defence may be made by special plea, or under the general issue.
Sec. 5. And be it further enacted, That if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress, and the defendant shall, at the time of entering his appearance in such court, or if such appearance shall have been entered before the passage of this act, then at the next session of the court in which such suit or prosecution is pending, file a petition, stating the facts and verified by affidavit, for the removal of the cause for trial at the next circuit court of the United States, to be holden in the district where the suit is pending, and offer good and sufficient surety for his filing in such court, on the first day of its session, copies of such process and other proceedings against him, and also for his appearing in such court and entering special bail in the cause, if special bail was originally required therein, it shall then be the duty of the State court to accept the surety and proceed no further in the cause or prosecution; and the bail that shall have been originally taken shall be discharged. And such copies being filed as aforesaid in such court of the United States, the cause shall proceed therein in the same manner as if it had been brought in said court by original process, whatever may be the amount in dispute or the damages claimed, or whatever the citizenship of the parties, any former law to the contrary notwithstanding. And any attachment of the goods or estate of the defendant by the original process shall hold the goods or estate so attached to answer the final judgment in the same manner as by the laws of such State they would have been holden to answer final judgment had it been rendered in the court in which the suit or prosecution was commenced. And it shall be lawful in any such action or prosecution which may be now pending, or hereafter commenced, before any State court whatever, for any cause aforesaid, after final judgment, for either party to remove and transfer, by appeal, such case during the session or term of said court at which the same shall have taken place, from such court to the next circuit court of the United States to be held in the district in which such appeal shall be taken, in manner aforesaid. And it shall be the duty of the person taking such appeal to produce and file in the said circuit court attested copies of the process, proceedings, and judgment in such cause; and it shall also be competent for either party, within six months after the rendition of a judgment in any such cause, by writ of error or other process, to remove the same to the circuit court of the United States of that district in which such judgment shall have been rendered; and the said circuit court shall thereupon proceed to try and determine the facts and the law in such action, in the same manner as if the same had been there originally commenced, the judgment in such case notwithstanding. And any bail which may have been taken, or property attached, shall be holden on the final judgment of the said circuit court in such action, in the same manner as if no such removal and transfer had been made, as aforesaid. And the State court from which any such action, civil or criminal, may be removed and transferred as aforesaid, upon the parties giving good and sufficient security for the prosecution thereof, shall allow the same to be removed and transferred, and proceed no further in the case: Provided, however, That if the party aforesaid shall fail duly to enter the removal and transfer, as aforesaid, in the circuit court of the United States, agreeably to this act, the State court, by which judgment shall have been rendered, and from which the transfer and removal shall have been made, as aforesaid, shall be authorized, on motion for that purpose, to issue execution, and to carry into effect any such judgment, the same as if no such removal and transfer had been made: And provided, also, That no such appeal or writ of error shall be allowed in any criminal action or prosecution where final judgment shall have been rendered in favor of the defendant or respondent by the State court. And if in any suit hereafter commenced the plaintiff is nonsuited or judgment pass against him, the defendant shall recover double costs.
Sec. 6. And be it further enacted, That any suit or prosecution described in this act, in which final judgment may be rendered in the circuit court, may be carried by writ of error to the Supreme Court, whatever may be the amount of said judgment.
Sec. 7. And be it further enacted, That no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or by or under any act of Congress, unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass, or wrong may have been done or committed, or act may have been omitted to be done: Provided, That in no case shall the limitation herein provided commence to run until the passage of this act, so that no party shall, by virtue of this act, be debarred of his remedy by suit or prosecution until two years from and after the passage of this act.
LYMAN TRUMBULL,
J. COLLAMER,
Managers on the part of the Senate.THADDEUS STEVENS,
JNO. A. BINGHAM,
Managers on the part of the House of Representatives.
The Senate Debate goes from page 1459 to 1477 of the Congressional Globe. The process at the end is rather ugly.
That bill started out in the House like this. A comparison will show what the Senate refused to accept.
H.R. 591
37th Congress
3rd SessionIN THE SENATE OF THE UNITED STATES
December 9, 1862
Read twice and referred to the Committee on the JudiciaryAN ACT
To indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof.
Whereas since the fourth day of March, eighteen hundred and sixty-one, the United states have been in an insurrectionary and rebellious condition, and the public safety has required that the privilege of the writ of habeas corpus should be suspended; and whereas during that time the privilege of the said writ has been several times suspended by the President of the United States, and several arrests and imprisonments have taken place under and in consequence thereof; and whereas there is not entire unanimity of opinion as to which branch of the government possesses the constitutional power to declare such suspension: Therefore --
Be it enacted by the Senate and House of Representatives of the United States of America in congress assembled,
That all such suspensions, arrests, and imprisonments, by whomsoever made or caused to be made, under the authority of the said President, shall be confirmed and made valid; and the said President, Secretaries, head of departments, and all persons who have been concerned in making said arrests, or in doing or advising any such acts as aforesaid, are hereby indemnified and discharged in respect thereof, and all indictments, and information, action, suits, prosecutions, and proceedings whatsoever commended, or to be commenced, against the said President, or any of the persons aforesaid in relations to the acts and matters aforesaid, or any of them, are hereby discharged and made void.
Sec. 2. And be it further enacted, That during the existence of this rebellion the President shall be, and is hereby, invested with authority to declare the suspension of the privilege of the writ of habeas corpus, at such times and in such places, and with regard to such persons, as, in his judgment, the p7ublic safety may require.
Passed the House of Representatives December 9, 1862.
Attest: EM. ETHERIDGE, Clerk
LOL, but they were ordered to be executed, the Supreme Court stopped it from happening in the case we were just discussing. Details, details, the truth is never your friend.
Keep in mind that Merryman was a citizen of Maryland, which gives not even the fig leaf of secession.
I'm not sure, but I think you're saying Maryland didn't give a hoot for secession. If so, then why did Ol' Abe have his storm troopers lock up all those legislators to prevent Maryland from seceding and leaving the capital cut off from the rest of the North?
And he did burn bridges...
No, that was an unfounded accusation. Even revisionist historians on your side of the ailse admit as much.
...and he did raise troops to overthrow the United States government.
No, he raised troops to defend his State, and NO ONE was trying to "overthrow the United States government" except Mr. Lincoln and his friends. They succeeded, and the Constitution lay in ruin when they were done. No wonder you love the tyrant, you think the Constitution was a "pact with the devil" anyway.
That is treason.
And how many of the millions of Confederate citizens and soldiers were legally convicted of treason?
After he was released he was a serving officer in the insurgent army.
Bully for him! "Maryland, my Maryland..."
BTW, Walt, if he so guilty of all these 'crimes', why were the charges dropped? 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.
That sounds like some of Grand Old Partisan's childish gibberish. I thought even you were above such blind ignorance and hypocrisy.
What was in that review of Mr. Neely's book that Walt posted yesterday? Oh yeah, now I remember: "Confederate authorities, Neely argues, used much the same pragmatic, flexible approach characteristic of the Lincoln administration..."
I remembered something about Mr. Neely's previous asininities. In another book I seem to remember him saying that Sherman "waged war the same way most Victorian gentlemen did", or something like that. I'd put Mr. Neely in the same category as those nutters that say the holocaust didn't happen, or that if it did, it was a Jewish conspiracy and Hitler was actually trying to save the Jews. The guy's apologetics are so childish that even a child can see through them.
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