Posted on 06/09/2009 8:47:35 AM PDT by Davy Buck
My oh my, what would the critics, the Civil War publications, publishers, and bloggers do if it weren't for the bad boys of the Confederacy and those who study them and also those who wish to honor their ancestors who fought for the Confederacy?
(Excerpt) Read more at oldvirginiablog.blogspot.com ...
First, you are pursuing your argument (not based in history, obviously) that any power not specifically mentioned in the Constitution was of necessity delegated to the federal government, and prohibited to the States. "[P]erhaps you can locate for us [written] quotes from Founders or anyone else of 1787" suggesting that?
Of course not.
Second, adding insult to injury, you offer the following:
...saying someone other than Congress can define just what exactly is an "insurrection," or "invasion."
What you are claiming, my ignorant young friend, is that Congress has somehow been empowered to determine the extent of its own powers. Congratulations! Under your idiotic argument, Congress could "define" our recent 'Tea Parties' to be either an "insurrection," or "invasion," have their sock puppet in the White House call out the US military to kill everyone present, and it would be 'constitutional.'
How nice!
In reality, you are completely wrong (as usual):
"...the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, -- delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the [federal] government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each [State as a] party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."
- Thomas Jefferson, Kentucky Resolutions, 1798
In short, Mr. Jefferson obviously disagreed with you (your loss).
And if not, then perhaps you can find for us Acts of Congress in 1861 which disapproved of President Lincoln's actions to preserve the Union?
Congratulations for nearly repeating yourself, verbatim. This is simply a repeat of your second idiotic argument (assuming I have them numbered correctly), that 'the [federal] government WAS made the exclusive or final judge of the extent of the powers delegated to itself' - with one slight modification. In your first example, you suggested that Congress WAS made the exclusive or final judge of the the extent of the powers delegated to itself (via an exclusive right to define the meaning of the specific terms of the Constitution, as it saw fit). In your second example, you suggest that Congress WAS ALSO made the exclusive or final judge of the the extent of the powers delegated to the President (and that lack of criticism from the northern Congress was somehow meaningful).
Apparently, under your argument, anything Obama does is constitutional, so long as Congress does not criticize him...
Really? Perhaps you should tell your friend Non-Sequitur: he routinely quotes from Mr. Madison's "confidential" and personal letters, dating from the 1830's. For example:
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=1940&chapter=119379&layout=html&Itemid=27
(Thanks, N-S! ;>)
I would challenge you to find quotes from the period of 1787, where our Founding Fathers use such terms as "secession," or "wholly withdraw from the Union."
From Federalist No. 43:
"What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it?...
"...it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain MODERATION on one side, and PRUDENCE on the other."
Because your vocabulary is apparently somewhat limited, allow me to point out the following facts:
1) Because "no political relation can subsist between the assenting and dissenting States," some States - either those assenting or dissenting - had to have formally withdrawn from the so-called "perpetual" union formed under the Articles;
2) That point is emphasized by the reference to "the obstacles to reunion" - there can be no "reunion" without there having been a 'disunion;'
3) Look up the definition of secession (I'll help out - "formal withdrawal from an organization" ;>), and apply it to the above.
When the ratifying States established a new government and union between themselves, under the specific written terms of the Constitution (see Article VII), they seceded from, and wholly withdrew from, the union formed under the terms of the Articles of Confederation.
I'm not aware of any, and so conclude that they intended their new Constitution to be just as "perpetual" as the old Articles of Confederation.
How can that be? According to your Post 1510, "the Constitution does not mention secession because it did not in any way contemplate it." The Constitution also does not mention a perpetual union, because (according to your idiotic argument) it did not in any way contemplate it. Please be consistent - you can't have it both ways.
;>)
Irrelevant, as addressed previously.
Further, the Articles of Confederation were expressly "perpetual," and no notice was given (that I'm aware of) to the lack of such term in the Constitution.
Irrelevant, as addressed previously (unless we adopt your Post 1510 argument, in which case you are wrong, via your own 'reasoning').
And the Constitution does expressly empower the Federal government to deal with such threats as invasion, rebellion, insurrection and "domestic violence."
Irrelevant, as addressed previously.
Seems obvious to me, the South wanted a War of Independence...
As I have demonstrated (at length) in previous posts, your arguments are irrational, if not idiotic. What seems obvious to you is, therefore, of exceedingly little interest to me.
To the rest of the Union these clearly fell into the Constitutional categories of "rebellion," "insurrection," "domestic violence" and even "invasion" of Federal property.
Hmm - was that "rest of the Union" the same as "3/4 of states" assembled in a constitutional convention (as you mentioned above)? It would seem to require that much, under your argument, for "the rest of the Union" (rather than the federal courts, as most of you "revisionists" argue) to decide the constitutionality of Southern secession.
Or was that "rest of the Union" really your northern rump Congress - in your Post 1528, you suggest that no one "other than Congress can define just what exactly is an 'insurrection,' or 'invasion;'" and therefore, no one but Congress could determine the constitutionality of such supposed issues.
Which was it - a constitutional convention, of 3/4 of the States? Or Congress? Or do you have a third (and equally contradictory) argument?
Do our revisionists want to scrub all those inconvenient terms and replace them with something less revealing of historical truth?
In reality (and quite obviously), you are the "revisionist" - I offer historical documentation in support of my statements (please see my previous posts), while you offer multiple, contradictory, and blatantly irrational arguments, lacking documentation. But then, I guess you explained things in your Post 1510 - it's just "the Non-Sequitur school of thought"...
;>)
"A little late to be authoritative?" Heck, William Rawle was from Pennsylvania - he started the nation's oldest existing law firm, in Philadelphia, in 1783. He was a delegate to the Pennsylvania Constitutional Assembly in 1789. He was also the first U.S. Attorney for the District of Pennsylvania, because of the respect President Washington had for him. Mr. Rawle was, in that capacity, involved in defeating the Whiskey Insurrection in Pennsylvania, and prosecuted the leaders thereof. President Washington also offered Mr. Rawle the positions of federal judge for the Pennsylvania District, and the position of U.S. Attorney General. He declined both positions. Several years later, Mr. Rawle authored a text on constitutional law, which was available at West Point to instruct the cadets at the U.S. Military Academy...
and which you completely dismiss.
I just noticed from your FR home page that you're a Pennsylvanian (I don't normally check that kind of thing - just wondered what planet you were from ;>). Like you, William Rawle "obviously" knew everything. You should cut the gentleman some slack - since he "obviously" worked his way through life; "obviously" enjoyed exceptional success as a result; and was from Pennsylvania (part of the "the rest of the Union" mentioned in your Post 1539) - and being from Pennsylvania, like you, he "obviously" knew absolutely everything (although, unlike you, I imagine he had a 'more than obvious' basis in fact for his beliefs)...
;>)
(Primary source for the above information, with thanks: http://www.rawle.com/About_History.asp)
I've checked the naval records, and the Harriet Lane was apparently in New York from April 5 to April 8, 1861. She sailed from New York at 9 AM April 8 [Official Records of the Navies; pgs 240-241; see also pg 236 and 244] and arrived off Charleston on April 11.
The Lane was sometimes used to transport men and supplies from one place to another, but this does not seem to have been the case on April 8. I found no records of her transporting or landing troop headed to Fort Pickens on April 8. Do you have any backup that suggests otherwise (other than what you posted)?
If your source is just listing items without providing details, there is a good possibility it is in error about the Lane.
John Remington Graham:
It is an historical fact that, on two occasions during their deliberations, the framers in the Philadelphia Convention voted to deny Congress the power of calling forth military forces of the Union to compel obedience of a state, and on two further occasions they voted to deny Congress the power of sending the Federal army or navy into the territory of any state, except as allowed under Article IV, Section 4 of the United States Constitution—to repel a foreign invasion or at the request of its legislature or governor to deal with domestic violence. (A Constitutional History of Secession, Gretna, Louisiana: Pelican Publishing Company, 2002, p. 287)
If the South were to violate any part of the Constitution intentionally and systematically, and persist in so doing, year after year, and no remedy could be had, would the North be any longer bound by the rest of it? And if the North were deliberately, habitually, and of fixed purpose to disregard one part of it, would the South be bound any longer to observe its other obligations? I have not hesitated to say, and I repeat, that if the Northern States refuse, willfully and deliberately, to carry into effect that part of the Constitution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact. A bargain cannot be broken on one side and still bind the other side.—Daniel Webster
James Madison:
The constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority, of the constitution, that it rests upon this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the compact made by them be violated and consequently that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition. (The Virginia Report of 1799-1800, Report on the Alien and Sedition Acts of 1798)
But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity? In the contest with Great Britain , one part of the empire was employed against the other. The more numerous part invaded the rights of the less numerous part. The attempt was unjust and unwise. . . . (Federalist Paper Number 46
Thomas Jefferson
“sever ourselves from that union we so much value, rather than give up the rights of self government which we have reserved, and in which alone we see liberty, safety and happiness” (see William Sterne Randle, Thomas Jefferson: A Life, New York: Henry Holt, 1993, pp. 534-536; see also Cisco, Taking A Stand, p. 18
Regards
(Please see my Post 1544 - it was “obviously” intended for you... ;>)
Allow me to add:
...[B]ut the federal branch [of government] has assumed in some cases, and claimed in others, a right of enlarging its own powers by constructions, inferences, and indefinite deductions from those directly given [gosh - sounds like "the Non-Sequitur school of thought," see your Post 1510] which this assembly does declare to be usurpations of the powers retained to the [States as] independent branches, mere interpolations into the compact, and direct infractions of it...
Whilst the General Assembly thus declares the rights retained by the States, rights which they have never yielded, and which this State will never voluntarily yield, they do not mean to raise the banner of disaffection, or of separation from their sister States, co-parties with themselves to this compact. They know and value too highly the blessings of their Union as to foreign nations and questions arising among themselves, to consider every infraction as to be met by actual resistance. They respect too affectionately the opinions of those possessing the same rights under the same instrument, to make every difference of construction a ground of immediate rupture. They would, indeed, consider such a rupture as among the greatest calamities which could befall them; but not the greatest. There is yet one greater, submission to a government of unlimited powers.
- Thomas Jefferson, Declaration and Protest of Virginia on the Principles of the Constitution of the United States of America, and on the Violations of them [by the federal government], 1825
They ought to teach this one in grade school, along with Mr. Jefferson's other declaration.
Oh - sorry - BroJoeK refuses to accept any historical documentation from that time frame (see his Post 1527)...
;>)
(Sorry for the typo, Idabilly - that should have been “see BroJoeK’s Post 1510” - very “obviously” NOT “see your Post 1510.” Dug two [relatively small, by congressional standards] tree stumps out of the yard today, and I’m a bit tired... ;>)
No precedent? Of course there were the opinions of Chief Justice Marshall and Justice Story. But it is argued that one one dictum and the other was just personal opinion. But there were also many expressions by Founders and others that the decision to suspend habeas corpus belonged to Congress.
I will repost below from an 1863 document 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 the 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 ]
I say tomato; you say tomahto. What part of "the powers of government may be reassumed by the people" don't you understand?
one one = one was
Shall we consider the other side?
Concurring in the doctrines that the separate States have a right to interpose in cases of palpable infraction of the constitution by the government of the United States, and that the alien and sedition acts presented a case of such infraction, Mr. Jefferson considered them as absolutely null and void, and thought the State legislatures competent, not only to declare, but to make them so, to resist their execution within their respective borders by physical force, and to secede from the Union, rather than to submit to them, if attempted to be carried into execution by force.——John Quincy Adams
. . . are but the ministers of the people; that their authority is delegated to them by the people, for their good, and they have a right to resume it, and place it in other hands, or keep it themselves, whenever it is made use of to oppress them. (John Adams, Volume 1: 1735-1784, Norwalk, CT: The Easton Press, 1962, Collector’s Edition, 190-191
“Federalists concluded from these propositions that since the states had negotiated the Constitution, the states alone could determine when a national law violated the compact, when its obligations under the Constitution ceased, and when to denounce it. From this it irresistibly followed that if a state nullified a law, interposed its authority between the people and the national administration, or in the extremity seceded, it would not commit treason. The state would merely assume to itself its full sovereign powers as a republic, a remedy “prescribed by the law of nations.” (To the Hartford Convention: The Federalists and the Origin of Party Politics in Massachusetts, 1789-1815, New York: Alfred Knopf, 1970, p. 118
“Descending from these general principles, we find the proposition that, in legal contemplation, the Union is perpetual, confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776.”
Let us again Understand the other side of the coin..
Now, sir, we are confusing language very much. Men speak of revolution; and when they say revolution they mean blood. Our fathers meant nothing of the sort. When they spoke of revolution they meant an unalienable right. When they declared as an unalienable right the power of the people to abrogate and modify their form of government whenever it did not answer the ends for which it was established, they did not mean that they were to sustain that by brute force. They meant that it was a right; and force could only be invoked when that right was wrongfully denied. Great Britain denied the right in the case of the colonies, and therefore our revolution for independence was bloody. If Great Britain had admitted the great American doctrine, there would have been no blood shed. . . .
If the Declaration of Independence be true (and who here gainsays it?), every community may dissolve its connection with any other community previously made, and have no other obligation than that which results from the breach of an alliance between States. Is it to be supposed; could any man . . . come to the conclusion that the men who fought the battles of the Revolution . . . in order that they might possess those unalienable rights which they had declared—terminated their great efforts by transmitting posterity to a condition in which they could only gain those rights by force? If so, the blood of the Revolution was shed in vain. . . . (Speech in the U.S. Senate, January 10, 1861, in The Rise and Fall of the Confederate Government, Volume 1, pp. 531-532
“I am of the Non-Sequitur school of thought which says, first: that the Constitution does not mention secession because it did not in any way contemplate it.”
That is silly—This Country was founded by Secession—Could it be they thought it was a unalienable Right? In Lincoln's years before absolute corruption—He certainly did!
I end this by a speech given by Senator Joseph Lane of Oregon:
My residence is in the North, but I have never seen the day, and I never shall, when I will refuse justice as readily to the South as to the North. . . .
Sir, if there is, as I contend, the right of secession, then, whenever a State exercises that right, this Government has no laws in that State to execute, nor has it any property in any such state that can be protected by the power of this Government. In attempting, however, to substitute the smooth phrases “executing the laws” and “protecting public property” for coercion, for civil war, we have an important concession: that is, that this Government dare not go before the people with a plain avowal of its real purposes and of their consequences. No, sir; the policy is to inveigle the people of the North into civil war, by masking the designs in smooth and ambiguous terms.
Lincoln like Obama {Was over his head} His OPPOSITION argued their points much more eloquently..Both liberal Lawyers from Illinois--- To boot
Happy am I to greet this vast multitude, assembled in the cause of our common country. I deeply regret that my physical inability to address you as my heart prompts, requires me to be exceedingly brief. Here for many years it has been my fortune to spend a portion of my time. For four years I was connected with you continually; learned to know your moral attributes; learned to know your peculiar characteristics. I knew how to labor for your natural interests. I trust, therefore, I may be allowed to speak to you of the people of Washington. Some entertain the foolish idea that because you have no vote, therefore you have no right to interfere in the national politics of the day. But you have the deepest interest; that high intelligence which sends forth its promptings to every portion of the country. Why then should not you assemble? Why should you not speak to your fellow-citizens of every portion of the country? Who else so deeply interested in the affairs of the Federal Government? Who else so dependent upon just administration of federal affairs? Who else so deeply interested in having the government administered with full and equal justice to all; and that it should be preserved in those vital energies which give protection whereever legislation exists? But we have heard it said that the democratic party is dead. Dead! Here I lay my hand upon its heart, and in its quick pulsations feel that vitality that sends it to victory. No, it is not dead. Born of the oppression of the mother country, when democracy arose to assert equal rights; baptised in the blood of the Revolution, rocked in the cradle of civil and religious liberty since 1800, it has lived, and lives to-day, with all its vital energies to fulfil the duties of this government, and meet the requirements of 1860. [Applause.] The speaker then proceeded briefly to contrast all the other parties in the country with the democratic.
First, he said, came that spurious and decayed off-shoot of democracy, which, claiming that this Federal government has no power, leaves the people our next greatest evil, despotism; and denies protection to our Constitutional rights. Next comes the party that proclaims the Union and the Constitution, but that dares not tell what the Constitution is—a mere catchword, sounding, but meaning nothing. Then, my friends, there is the “rail-splitter,” aptly selected for the purpose, first proclaiming there was an “irrepressible conflict” between the sections; and having proved himself able to rend the yoke, who so fit as he, with such a theory as that, to be selected for the accursed performance of rending the Union? Then, my friends, comes the true democracy, proclaiming the Constitution and the Union, and what the Constitution is; writing your opinions on your banner, throwing it to the winds, and inviting all who believe to command worship at the altar of truth. [Applause.] This banner proclaims the futility of Abe Lincoln's efforts to rend the Union. Though he did rend the yoke, he will find the Constitution and the Union worse than any black gum in the forest.
Our cause is onward. Our car is the Constitution; our fires are up; let all who would ride into the haven of a peaceful country come on board, and those who will not, I warn that the cow- catcher is down—let stragglers beware! [Cheers.] We have before us in this canvass the highest duty which can prompt the devoted patriot. Our country is in danger. Our Constitution is assailed by those who would escape from declaring their opinions—by those who seek to torture its meaning, and by those who would trample upon its obligations. What is our Union? A bond of fraternity, by the mutual agreement of sovereign States; it is to be preserved by good faith—by strictly adhering to the obligations which exist between its friendly and confederate States. Otherwise we should transmit to our children the very evil under which our fathers groaned—a government hostile to the rights of the people, not resting upon their consent, trampling upon their privileges, and calling for their resistance. But I place my trust in democracy—in that democracy which has borne this country on from its commencement, which has illustrated all its bright passages of history, which has contributed to it all which is grand and manly, all which has elevated and contributed to its progress—the democracy of Washington, of Jefferson, of Jackson, and of Buchanan [great applause] shall be the democracy of the next four years. [Renewed applause.]
During the entire period of my intercourse with the people of Washington, I do not recollect of ever having seen such a multitude of citizens as those assembled here this evening. But more than that—during the time I have been speaking, as my eye runs over the vast throng before me, I can say never have I seen so quiet, so orderly, so patriotic a concourse of people (judging from the expression of their countenances) as is assembled here to-night. [Applause.]
The national democracy present a ticket to the country which may well inspire the most lofty patriotism. The name of Breckinridge comes down by lineal descent from one who asserted the great principles of 1798, as reaffirmed at Baltimore; and as for Lane, he is too modest to boast of the deeds of his younger days. No doubt he has split a hundred rails to Lincoln's one! [Laughter and cheers.] Let us then be encouraged to go into the conflict, determined to succeed, and transmit to our children the rich inheritance we have received from our fathers unimpaired. [Applause.]
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BroJoeK,
Lincoln's view was much like Webster's {or on of} as they flipped flopped...
Henry Cabot Lodge says: “It was probably necessary, at all events Mr. Webster felt it to be so, to argue that the Constitution at the outset was not a compact between the States, but a national instrument, and to distinguish the cases of Virginia and Kentucky in 1799, and of New England in 1814, from that of South Carolina in 1830. . . . . Unfortunately the facts were against him in both instances. When the Constitution was adopted by the votes of States at Philadelphia, and accepted by the votes of States in popular conventions, it is safe to say that there was not a man in the country, from Washington and Hamilton on the one side to George Clinton and George Mason on the other, who regarded the new system as anything but an experiment entered upon by the States, and from which each and every State had the right peaceably to withdraw, a right which was very likely to be exercised.”
As Madison said in Federalist No. 39, “ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong.” And, “Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.”
“the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”
fwiw, southerners are able to discriminate between the DAMNyankees & "people, who were just born up there", essentially from the time we are in prekindergarten. (DYs are THAT obvious in their HATRED of/CONTEMPT for the southland & southerners!!!)
a DAMNyankee is a south-HATER & DYs generally are prone to other sorts of BIGOTRY and/or RACISM as well.(as my grandfather used to say, "IF the DYs were not so busy hating the south & our good people, they would be some other sort of ignorant BIGOT.")
free dixie,sw
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