Posted on 08/20/2004 5:43:21 AM PDT by TexConfederate1861
Imagine that America had a Chief Justice of the United States who actually believed in enforcing the Constitution and, accordingly, issued an opinion that the war in Iraq was unconstitutional because Congress did not fulfill its constitutional duty in declaring war. Imagine also that the neocon media, think tanks, magazines, radio talk shows, and television talking heads then waged a vicious, months-long smear campaign against the chief justice, insinuating that he was guilty of treason and should face the punishment for it. Imagine that he is so demonized that President Bush is emboldened to issue an arrest warrant for the chief justice, effectively destroying the constitutional separation of powers and declaring himself dictator.
An event such as this happened in the first months of the Lincoln administration when Abraham Lincoln issued an arrest warrant for Chief Justice Roger B. Taney after the 84-year-old judge issued an opinion that only Congress, not the president, can suspend the writ of habeas corpus. Lincoln had declared the writ null and void and ordered the military to begin imprisoning thousands of political dissenters. Taney’s opinion, issued as part of his duties as a circuit court judge in Maryland, had to do with the case of Ex Parte Merryman (May 1861). The essence of his opinion was not that habeas corpus could not be suspended, only that the Constitution requires Congress to do it, not the president. In other words, if it was truly in "the public interest" to suspend the writ, the representatives of the people should have no problem doing so and, in fact, it is their constitutional prerogative.
As Charles Adams wrote in his LRC article, "Lincoln’s Presidential Warrant to Arrest Chief Justice Roger B. Taney," there were, at the time of his writing, three corroborating sources for the story that Lincoln actually issued an arrest warrant for the chief justice. It was never served for lack of a federal marshal who would perform the duty of dragging the elderly chief justice out of his chambers and throwing him into the dungeon-like military prison at Fort McHenry. (I present even further evidence below).
All of this infuriates the Lincoln Cult, for such behavior is unquestionably an atrocious act of tyranny and despotism. But it is true. It happened. And it was only one of many similar constitutional atrocities committed by the Lincoln administration in the name of "saving the Constitution."
The first source of the story is a history of the U.S. Marshal’s Service written by Frederick S. Calhoun, chief historian for the Service, entitled The Lawmen: United States Marshals and their Deputies, 1789–1989. Calhoun recounts the words of Lincoln’s former law partner Ward Hill Laman, who also worked in the Lincoln administration.
Upon hearing of Laman’s history of Lincoln’s suspension of habeas corpus and the mass arrest of Northern political opponents, Lincoln cultists immediately sought to discredit Laman by calling him a drunk. (Ulysses S. Grant was also an infamous drunk, but no such discrediting is ever perpetrated on him by the Lincoln "scholars".)
But Adams comes up with two more very reliable accounts of the same story. One is an 1887 book by George W. Brown, the mayor of Baltimore, entitled Baltimore and the Nineteenth of April, 1861: A Study of War (Johns Hopkins University Press, 1887). In it is the transcript of a conversation Mayor Brown had with Taney in which Taney talks of his knowledge that Lincoln had issued an arrest warrant for him.
Yet another source is A Memoir of Benjamin Robbins Curtis, a former U.S. Supreme Court Justice. Judge Curtis represented President Andrew Johnson in his impeachment trial before the U.S. Senate; wrote the dissenting opinion in the Dred Scott case; and resigned from the court over a dispute with Judge Taney over that case. Nevertheless, in his memoirs he praises the propriety of Justice Taney in upholding the Constitution by opposing Lincoln’s suspension of habeas corpus. He refers to Lincoln’s arrest warrant as a "great crime."
I recently discovered yet additional corroboration of Lincoln’s "great crime." Mr. Phil Magness sent me information suggesting that the intimidation of federal judges was a common practice in the early days of the Lincoln administration (and the later days as well). In October of 1861 Lincoln ordered the District of Columbia Provost Marshal to place armed sentries around the home of a Washington, D.C. Circuit Court judge and place him under house arrest. The reason was that the judge had issued a writ of habeas corpus to a young man being detained by the Provost Marshal, allowing the man to have due process. By placing the judge under house arrest Lincoln prevented the judge from attending the hearing of the case. The documentation of this is found in Murphy v. Porter (1861) and in United States ex re John Murphy v. Andrew Porter, Provost Marshal District of Columbia (2 Hay. & Haz. 395; 1861).
The second ruling contained a letter from Judge W.M. Merrick, the judge of the Circuit Court of the District of Columbia, explaining how, after issuing the writ of habeas corpus to the young man, he was placed under house arrest. Here is the final paragraph of the letter:
After dinner I visited my brother Judges in Georgetown, and returning home between half past seven and eight o’clock found an armed sentinel stationed at my door by order of the Provost-Marshal. I learned that this guard had been placed at my door as early as five o’clock. Armed sentries from that time continuously until now have been stationed in front of my house. Thus it appears that a military officer against whom a writ in the appointed form of law has first threatened with and afterwards arrested and imprisoned the attorney who rightfully served the writ upon him. He continued, and still continues, in contempt and disregard of the mandate of the law, and has ignominiously placed an armed guard to insult and intimidate by its presence the Judge who ordered the writ to issue, and still keeps up this armed array at his door, in defiance and contempt of the justice of the land. Under the circumstances I respectfully request the Chief Judge of the Circuit Court to cause this memorandum to be read in open Court, to show the reasons for my absence from my place upon the bench, and that he will cause this paper to be entered at length on the minutes of the Court . . . W.M. Merrick Assistant Judge of the Circuit Court of the District of Columbia
As Adams writes, the Lincoln Cult is terrified that this truth will become public knowledge, for it if does, it means that Lincoln "destroyed the separation of powers; destroyed the place of the Supreme Court in the Constitutional scheme of government. It would have made the executive power supreme, over all others, and put the president, the military, and the executive branch of government, in total control of American society. The Constitution would have been at an end."
Exactly right.
August 19, 2004
Thomas J. DiLorenzo [send him mail] is the author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, (Three Rivers Press/Random House). His latest book is How Capitalism Saved America: The Untold Story of Our Country’s History, from the Pilgrims to the Present (Crown Forum/Random House, August 2004).
Copyright © 2004 LewRockwell.com
In the real world, we refer to this as "Piled Higher and Deeper".
As a general statement, life had borne that out...
Nice response. Tip o'the hat.
BUMP
As an interesting aside, you should take some time to read about the 2nd Continental Congress. There is much more complexity to it than many think.
Contrary to popular myth, the delegates of all 13 colonies did NOT congregate around the table on July 4th to give their unanimous sanction to the document and sign their signatures like all the movies show. Signatures went on for months as the delegates who were absent arrived. In fact, the final signature was not affixed to it until 1781!
The signature dates are important because they also reveal another little known fact. Though the declaration itself was adopted on July 4, 1776 it was NOT done unanimously as the later text states. You may see this fact in the very first public copy of the declaration - printed on the evening of July 4th by John Dunlap at the order of Hancock.
http://www.ushistory.org/declaration/document/dunlap.htm
Notice that it has a completely different header than the one we know, "The unanimous Declaration of the thirteen united States of America."
That's because New York's delegation lacked a quorum and could not affix their names to the document yet. THey did not arrive in Philadelphia with a consensus to sign on for another month! The "official" copy of the DoI that is so famous was not drafted for another month either. It was started beginning on August 2nd when they began to collect signatures. New York arrived around this time, which is when they CHANGED the document from the Dunlap broadside's text to read "unanimous." (IIRC this was done on August 9th but I'll have to double check the exact date).
This all means, of course, that the Lincolnite lines about the union predating the DOI and the colonies declaring independence "jointly" is a fib. In reality, only a majority of them declared independence on the 4th and they did not reach a unanimous agreement for another month!
Correction - New York would have added its support sometime later in July, hence the change to "unanimous" when they drafted the August 2nd presenation copy for signing.
[TANEY, Opinion of the Court]
There are two leading questions presented by the record:
1. Had the Circuit Court of the United States jurisdiction to hear and determine the case between these parties?And 2. If it had jurisdiction, is the judgment it has given erroneous or not?
DRED SCOTT v. SANDFORD, 60 U.S. 393, 400 (1856)
Scott claimed jurisdiction of the Supreme Court on the basis of diversity of citizenship, Sanford being a citizen of New York, and Scott averring the he was a citizen of Missouri, as he was required to do to invoke jurisdiction in this manner.
The question of jurisdiction depended upon Scott being a citizen of Missouri. The highest court in the state of Missouri had held that, pursuant to Missouri state law, Scott was not a citizen.
The Supreme Court had no power to overrule the highest court of any State where that court was interpreting the law of the State. There was no allegation that Missouri state law was repugnant to the Federal constitutional.
The Supreme Court held that Scott was not a citizen of the State of Missouri and that the asserted Federal jurisdiction failed.
You must have been thinking of King Abraham the First, and his tertiary stage syphilitic addled mind.
POX: Genius, Madness, and the Mysteries of Syphilis
ISBN 0-465-02881-0
By Deborah Hayden
Abraham Lincoln
Excerpt from Lincoln chapter:
According to Lincoln’s biographer, friend, and law partner for eighteen years, William Herndon, Lincoln told him that he had been infected with syphilis in Beardstown in 1835 or 1836. Herndon wrote to his co-author “Friend Weik” in January 1891, wishing that he had not put the confidence in writing:
When I was in Greencastle in 1887 I said to you that Lincoln had, when a mere boy, the syphilis, and now let me explain the matter in full, which I have never done before. About the year 1835-36 Mr. Lincoln went to Beardstown and during a devilish passion had connection with a girl and caught the disease. Lincoln told me this and in a moment of folly I made a note of it in my mind and afterwards I transferred it, as it were, to a little memorandum book which I loaned to Lamon, not, as I should have done, erasing that note. About the year 1836-37 Lincoln moved to Springfield and took up quarters with [Joshua] Speed; they became very intimate. At this time I suppose that the disease hung to him and, not wishing to trust our physicians, wrote a note to Doctor Drake, the latter part of which he would not let Speed see, not wishing Speed to know it. Speed said to me that Lincoln would not let him see a part of the note. Speed wrote to me a letter saying that he supposed L’s letter to Doctor Drake had reference to his, L’s crazy spell about the Ann Rutledge love affair, etc., and her death. You will find Speeds’ letter to me in our Life of Lincoln. The note to Doctor Drake in part had reference to his disease and not to his crazy spell as Speed supposes. The note spoken of in the memorandum book was a loose affair, and I never intended that the world should see or hear of it. I now wish and for years have wished that the note was blotted out or burned to ashes. I write this to you, fearing that at some future time the note-a loose thing as to date, place, and circumstances-will come to light and be misunderstood. Lincoln was a man of terribly strong passion, but was true as steel to his wife during his whole marriage life, as Judge Davis has said, saved many a woman, and it most emphatically true, as I know. I write this to you to explain the whole matter for the future if it should become necessary to do so. I deeply regret my part of the affair in every particular.
In a postscript, he adds that a Mrs. Dale saw the book and took note of its contents, and so he fears that the contents may come to light from that source.
Herndon tells us that Lincoln moved in with Speed in 1836-37 and, to repeat from the letter, “at this time I suppose that the disease hung to him [italics added] and, not wishing to trust our physicians, [he] wrote a note to Doctor Drake.” But there is an odd discrepancy in the Speed letter to Herndon published in the Life of Lincoln (completed in 1888-the year before the letter to Weik cited above) and dated 30 November 1866. Here Speed puts the date of the letter to Drake several years later:
Lincoln wrote a letter -- a long one which he read to me-to Dr. Drake of Cincinnati, descriptive of his case. Its date would be in December 1840, or early in January 1841. I think that he must have informed Dr. Drake of his early love Miss Rutledge, as there was a part of the letter which he would not read . . . I remember Dr. Drake’s reply, which was, that he would not undertake to prescribe for him without a personal interview. Here Speed tells Herndon that Lincoln would not let him read part of the letter and guesses that he must have informed Drake of his early love for Ann Rutledge. He remembers Dr. Drake’s reply, that he could not prescribe medication without a personal interview.
The first reference to a contact with Dr. Drake in 1836-37 would have been within one or two years of the initial infection in Beardstown, thus in the highly infectious stage. The second reference, December 1840-January 1841, would have been four to five years after Beardstown, or well into the middle stage of disease. Hirschhorn, Feldman, and Greaves assign the Drake contact to the later date.
Mary Todd Lincoln
Excerpt from Lincoln chapter:
Syphilis was suggested in Mary Todd’s medical history when Norbert Hirschhorn and Robert Feldman published an article in 1999 reviewing the work of the four doctors who had diagnosed her progressive spinal trouble. Finding a clear case of tabes dorsalis, Hirschhorn and Feldman argue convincingly that the doctors would have known very well by then that tabes was caused by syphilis in the majority of cases and would have opted to save her reputation (and to assure a benefit that might have been withheld by a censorious Congress) by stating that her tabes dorsalis was caused by an injury to her spine when she fell from the French chair. “Given the widespread medical knowledge about tabes dorsalis at the close of 1881 and what then was considered its most likely cause [syphilis], it was inevitable that the four physicians chose the least pejorative diagnosis, however marginally acceptable it was to progressive medical opinion.” Jonathan Hutchinson concluded that it was generally accepted that tabes occurs “almost solely” in those who have previously suffered from syphilis. P.J. Möbius went one step further: “The longer I reflect upon it, the more firmly I believe that tabes never originates without syphilis.”
The tabes diagnosis gives a fresh interpretation to the reasons for Mary Todd’s incarceration: “Symptoms imputed to insanity at her trial clearly had their origin in the organic disease of tabes dorsalis.” The authors point out that the lightning pains of tabes were often described with vivid images appropriate to such extreme agony, such as having wires taken out of the eyes or, as Mary also complained, of being hacked to pieces by knives, or of having a sharp, burning agony in the back, or feeling as if one were on fire.
Deborah Hayden
February 21, 2004February 21, 2004 Abraham Lincoln & Syphilis--idea for an article The source that Abraham Lincoln had been infected with syphilis is none other than Lincoln himself, according to his biographer, friend, and law partner, William Herndon. In a letter to his co-author, Herndon wrote: "When I was in Greencastle in 1887, I said to you that Lincoln had, when a mere boy, the syphilis, and now let me explain the matter in full, which I have never done before. About the year 1835-36, Mr. Lincoln went to Beardstown and during a devilish passion had connection with a girl and caught the disease. Lincoln told me this and in a moment of folly I made note of it in my mind and afterwards I transferred it, as it were, to a little memorandum book which I loaned to Lamon, not, as I should have done, erasing that note. About the year 1836-37 Lincoln moved to Springfield and took up quarter with [Joshua] Speed; they became very intimate. At this time I suppose that the disease hung to him, and not wanting to trust our physicians, wrote a note to Doctor Drake."
In my chapter on Lincoln, I made the point that there is quite a bit of circumstantial evidence that Lincoln did have syphilis, and that he was probably taking the "little blue mercury pills" not for melancholia as has been suggested, but for on-going syphilis.
What is remarkable about this whole story is how it has been almost completely ignored in the vast Lincoln scholarship. The question of whether or not Lincoln had syphilis, and how good the clinical evidence of that is, demands further research. But there is a more interesting question. What if Lincoln believed that he had syphilis? And why have there been so many biographies of Lincoln that don't even mention Herndon's letter, let alone ponder the implications?
Gore Vidal is about the only one who brought the whole thing into the open, when he said on the Larry King television program, that both Abraham and Mary Lincoln were infected with syphilis. But he didn't do his homework to pull together a convincing story -- and he didn't have Norbert Hirschhorn's two articles -- the one showing that the "blue mass" that Lincoln took was mercury, or the one showing that Mary Todd's four doctors in 1882 almost assuredly believed that she was suffering from tertiary syphilis in the form of tabes dorsalis. (I make the point in my chapter that Mary Todd's mental imbalance points toward a diagnosis of taboparesis-- that is, both tabes and paresis, but that is another story.
Douglas L. Wilson (co-director of the Lincoln Studies Center at Knox College, in Galesburg, Illinois) mentions the Herndon-Greencastle passage in an article in the Atlantic, but he leaves it without comment, although he does deal with it in a bit more detail in Honor's Voice, his 1998 biography of Lincoln.
So -- this question is posed to the Lincoln scholars: what difference does it make to our view of Lincoln and his place in history if he was, as he said to Herndon, another secret syphilitic?
I'm tempted to write to a handful of Lincoln scholars and ask them this question.
Gore Vidal
Devotees of the Mount Rushmore school of history like to think that the truely great man is a virgin until his wedding night; and a devoted monogamist thereafter. Apparently, Lincoln was indeed "true as steel" to Mary Todd even though, according to Herndon, "I have seen women make advances and I have seen Lincoln reject or refuse them. Lincoln had terrible strong passions for women, could scarcely keep his hands off them, and yet he had honor and strong will, and these enabled him to put out the fires of his terrible passion." But in his youth he was seriously burned by those fires. In the pre-penicillin era syphilis was epidemic - and, usually, incurable. According to Herndon: "About the year 1835-36 Mr. Lincoln went to Beardstown and during a devilish passion had connection with a girl and caught the disease. Lincoln told me this . . " Later, after a long seige, Lincoln was cured, if he was cured, by a Dr. Daniel Drake of Cincinnati.
Herndon suspected that Lincoln might have given Mary Todd syphilis. If he had, that would have explained the premature deaths of three Lincoln children: "Poor boys, they are dead now and gone! I should like to know one thing that this is: What caused the death of these children? I have an opinion which I shall never state to anyone." So stated to everyone Herndon. The autopsy on Mary Todd showed a physical deterioration of the brain consistent with paresis. If Lincoln had given his wife syphilis and if he had, inadvertently, caused the death of his children, the fits of melancholy are now understandable - and unbearably tragic.
Gore Vidal
As for Lincoln's syphilis, I use the words Herndon himself used: "About the year 1835-36 Mr. Lincoln went to Beardstown and during a devilish passion had connection with a girl and caught the disease [syphilis]. Lincoln told me this . . . About the year 1836-37 Lincoln moved to Springfield . . At this time I suppose that the disease hung to him and, not wishing to trust our physicians, he wrote to Doctor Drake." Since there is no reason for Herndon to lie about this, I suppose we should all agree upon it as a fact. But since no saint has ever had syphilis, Herndon is a liar and so the consensus finds against him.
You pick and choose your authorities and play word games a lot, but the Constitution is consistent as treating "people" as a plural.
"Hostility to abolitionism is especially apparent in the influential works of Charles Warren and Albert J. Beveridge. Without defending the Dred Scott decision, both went as far as ['the one-sided writings' of Elbert] Ewing and [William] Mikell in treating Taney as a martyr to viciously unfair criticism. Furthermore, Beveridge came to the conclusion the 'the people had well-nigh no interest at all in the decision' and that most of the public excitement over it was synthetically manufactured by Republican leaders in order to save their party from disintegration."
Fehrenbacher was not endorsing the "rehabilitation" of Taney, as the entirety of his book makes clear. Rather, he was explaining why lesser historians and other kooks came to their wrong-headed opinions.
Carl Swisher, who Fehrenbacher terms "sympathetic but not uncritical" of Taney concluded "'First and foremost,' he wrote, one must remember Taney's 'devotion to the South ... and his belief that that, if the trend of events continued, the South was doomed.'" Taney was not only a political activist justice, but also a Southern partisan at a critical time in history when such partisanship equated to treason.
To get a flavor of what Fehrenbacher really thinks about Taney's reputation, go to pgs 592-593 and read:
"Thus the twentieth-century rehabilitation of Roger B. Taney remains more or less intact. It rest primarily upon a proper appreciation of his entire judicial career, but also it draws strength from several DUBIOUS historical traditions that tend to mitigate his responsibility for the 'disaster' of Dred Scott. These [dubious traditions] included repeated assertions that Taney was privately opposed to slavery; that the two dissenting justices forced the Court majority to render a broad decision; that Taney's Dred Scott opinion was an 'aberration' from his habitual devotion to self-restraint; and that the worst consequences of Dred Scott were produced, not so much by the substance of the decision itself, as by the violent and unjust Republican attack upon it." (bold for emphasis)
I have found that ignorance is often rooted in dogma, and thrives in the absence of rational discussion.
But, as usual, you miss the point. Taney's faulty and bigoted "reasoning" affected not only Scott, but an entire class of people, free and slave, who were not necessarily in the same specific situation as Scott, but shared some of the same racial characteristics. Had the Court addressed the narrow issue, as the Nelson opinion purported to do, then the entirety of Dred Scott would not have blighted American legal tradition.
In the decision, Taney went to great lengths to misrepresent founding era history, law, and principles (the most obvious of which is that "all men are created equal"). Taney lied.
What is the birthdate of the United States of America?
Dred Scott was born into slavery in Southampton County, Virginia, in 1795. Scott was clearly not an alien. To deny him of citizenship required legislation hostile. Chief Justice Shaw of the the Massachusetts Supreme Court noted that "slavery was contrary to natural right and dependent upon local law for its 'existence and efficacy.'" (Fehrenbacher, Pg 57).
As Fehrenbacher notes (pg 6-7) about the Dred Scott case:
"The confusion still surrounding the case reflects the confusion with which it was handled by the Court, and both are attributable in part to its legal complexity but in larger measure to the enormous range of its scrutiny and implication. In his opinion, Taney issued pronouncements on the relationship between the Constitution and the Articles of Confederation, on the limits of congressional power, on the geographic extent of the Bill of Rights, on the constitutional authority for territorial expansion, on the rights of private property, on comity between states, and on the nature of the Federal Union. Defined the power of naturalization, the legal status of Indian tribes, and the criteria for citizenship, state and federal. He introduced a new meaning of "due process" into federal law and virtually rewrote the privileges-and-immunity clause of the Constitution. These, moreover, were merely connotative aspects of the opinion.
"The three principle subjects with which Taney dealt at length were (1) the Negro race generally and free Negroes in particular; (2) the institution of slavery; and (3) the territorial system. of these, the first is not mentioned at all in the Constitution; the second is referred to in three separate passages,but never by the same name; and the third is treated in one brief and ambiguous clause. The textural basis for constitutional interpretation was therefore meager. In each instance, moreover, there was a peculiar hybridism that fostered confusion. The so-called free Negro, though not a slave, was excluded from any of the privileges and opportunities associated with American freedom. Slaves were in some respects persons and in other respects property. And territories were likewise something betwixt and between, neither being colonies nor self-governing states but rather a distinctive American combination of the two.
"Although the Dred Scott case was legally complex and invited a judicial investigation of remarkable scope into matters of perplexing ambiguity for which the guidelines were often vague and discrepant. The Court, as a consequence, had much freedom of choice and found it easy to treat broad political and historical questions as though they were legal issues susceptible of judicial settlement. Indeed, citation of legal rules and precedents was only a secondary bulwark of Taney's opinion, which depended primarily upon the interpretation of American history that he proposed to write into constitutional law."
Taney lied and misrepresented American history to bolster his own racist views. The crucial question of free Negro citizenship in the founding era, and the natural rights of all people, free and slave, if honestly evaluated by Taney, could have led to an entirely different decision by an open-minded Court.
We technically celebrate July 4th - the day the DoI text was adopted, though John Adams believed that July 2nd, the day of the first independence vote, would be remembered by history. Before it, there were several dates in June or thereabouts where some of the colonies and even some counties in some of the colonies declared their independence. The first date where we can conclusively say that all 13 colonies in full gave their sanction to independence was when New York's delegation returned later in July with instructions to switch their abstention to affirmation and the DoI was subsequently made unanimous.
And this is a good example of why it is so difficult to have a reasoned discussion with you. Here we have El Capitan discussing Farber's views. Are these El Capitan's views? If I go after it using logic and reason, or even compare it to midieval disputes about the nature of the trinity, will El Capitan back away and say, "Well, that's where Farber was wrong... that's the 50% where I disagree, but please note that you are still wrong for other reasons."
"Sovereignty" is not wholly conceptual. The only controversy is in the heads of imaginitive authoritarians.
Okay, so we fabricate a court case and put it in front of SCOTUS so that a minority of justices can rage against the law and the political machine which makes it, stir public opinion, etc. without consequence or counteraction?
Abolitionists were not that stupid. They agitated for the Taney opinion because they needed the Taney opinion. It was one of the things that carried Lincoln to the white house, and the country to war.
Great!!! All you have to do is quote the legal precedent and legislation in which it was declared that "all men are created equal." Until then, I'll have to say that even the writer didn't believe that when he put pen to paper.
1012: Taney Lied
#1047: In other words, he lied.
#1092: Taney Lied
Whatever you say, boss.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.