Posted on 08/13/2003 6:57:47 AM PDT by bedolido
I said Abe would go as far (and maybe half a step further) as the people would allow him at any given moment. Unlike the Radicals, he was a political realist.
I suggest you try being "factual" for a change instead of damning Lincoln for not doing the impossible.
My bad - the decision was written by John Marshall. The case is cited by Taney in ex parte Merryman.
You can read the entire decision at Findlaw
Nonsense. I have always maintained that it was and is abhorrent - from Joseph in Egypt to today. Please post a quote from me glorifying the practice.
"... Chief Justice Taney, on circuit as a federal district judge, issued a writ of habeas corpus, but he did so as a Supreme Court justice from chambers."
The case before the court in Ex Parte Bollman & Swartwout involved not who could suspend habeas corpus, but whether the court could issue a writ of habeas corpus or not. Since habeas corpus had not been suspended at the time, the court could not rule on the legality of the suspension so the Chief Justices comments on this matter constitute an obiter dictum; that which is said by the way or in passing. In law, an obiter dictum is an opinion expressed by a judge on a point of law not necessarily connected with the issue before the court. Obiter dicta have no binding authority. The comments Chief Justice Marshall made in Bollman & Swartwout concerning the suspension of habeas corpus were not part of the matter before the court. His comments on this unrelated matter have no standing in law other than an indication of how Marshall felt on that particular subject. When President Lincoln suspended habeas corpus on his own authority he violated no Suprem Court decision.
Why not? Marshall wrote:
'If the act of congress gives this court the power to award a writ of habeas corpus in the present case, it remains to inquire whether that act be compatible with the constitution.'Article I, § 9 - of the Constitution, a legislative power which 'herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives', explicitly states 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.''... If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the legislature to say so.'
The Act in question must conform to the Constitution. The Contitution states that SUSPENDING the writ of habeas corpus is a legislative power. It's not a case where the legislature must craft legislation to put the grant into effect, it's a case where the legislature must enact legislation to suspend it. If it has NOT been suspended, the courts could obviously issue a writ. Which is exactly what Marshall had to decide. He wrote, 'the power to bring a person up that he may be tried in the proper jurisdiction is understood to be the very question now before the court.'
Only by answering the question of whether or not the legislature had suspended the writ could that question be decided. So instead of obiter dictum, Marshall's statement that the suspension of the writ is a legislative power is the foundation for the decision, not extranneous to it. Only IF the writ had been suspended by the legislature could the court be denied the 'power to bring a person up' on a writ of habeas corpus.
"By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare was against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.
All persons residing within this territory whose property may be used toincrease the revenues of the hostile power are, in this contest, liable to be treated as enemies, though not foreigners. They have cast off their allegiance and made war on their Government, and are none the less enemies because they are traitors."
Secession is revolution and treason, and Grier doesn't say anything else.
Walt
I didn't say that Butler was running for office, I said he was -seeking- office. Butler never, after 1865, gave up trying to regain the power he had during the war. He didn't -plan- on dying in 1893. This story of his alleged meeting with President Lincoln in April, 1865 is of a piece with that.
Discussion over on the ACW moderated newsgroup indicates that Dr. Mark Neely says that the story of Lincoln's meeting with Butler and looking favorably on deporting all blacks is a complete fabrication. You should treat it as such.
Walt
There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed to prevent it from falling into the hands of the public enemy; and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner.
When did the Supreme Court -explicitly- disavow, or even speak to, the Emancipation Proclamation?
Walt
It's not fortune-telling, or predicting the future. The court address seizure of property: 'Unquestionably, in such cases, the government is bound to make full compensation to the owner.'
Understand that?
lol, I was being factual. Here's the misleading (false) statement you made that I corrected:
Mr. Ditto: "Two days before his "dying day" he gave his last public address where he called for voting rights for blacks."
I corrected this by pointing out that he only called for voting rights for SOME blacks, and did so while he was separating himself from others who did want to grant rights to all. For some reason, you perceived this as a "damnation". Then, in a purely selfless and conciliatory act, I pointed out that there were more than a few Republicans who did feel about the issue the way you mistakenly thought ol' Abe did, and that you could most certainly tout them as being on "your" side. Alas, this too was perceived as some sort of "damnation" of uncle Abe, and only resulted in your asking an insensitive question regarding some violently insane little man (no doubt broiling in Hell at this very moment) who is best forgotten. But back to the initial point. If Lincoln were here, he'd tell you how wrong you were. Oh wait, he already has, in his original statement, which you initially referenced and which these last few exchanges have been about:
"It is also unsatisfactory to some that the elective franchise is not given to the colored man. I would myself prefer that it were now conferred on the very intelligent, and on those who serve our cause as soldiers."
See, just some. His exclusionary and conditional ideas on the subject were specifically stated to seperate himself from the group he first mentions. You would deny them their credit on this issue and give it to Mr. Lincoln, who was going out of his way to make it clear he didn't agree with them. Perhaps it is you who should try to be factual.
It's not fortune-telling, or predicting the future. The court address seizure of property: 'Unquestionably, in such cases, the government is bound to make full compensation to the owner.'
Understand that?
People are not property; understand that?
This is SO typical of the neo-confederate rant. Neo-rebs will pound the table and say, "Show me where the Constitution explicitly forbids secession," but when the shoe is on the other foot, they resort to the sort of implication they won't allow from the loyal side.
Walt
VISUALISE NO LIBERALS
Why not? Because the Supreme Court can only rule on issues brought before it. It cannot issue an advisory ruling on matters which had not happened yet.
The Contitution states that SUSPENDING the writ of habeas corpus is a legislative power.
No it doesn't. The Constitution only says that habeas corpus cannot be suspended except when in cases of invasion or rebellion the public safety requires it. It does not say that only congress can suspend it. That may be inferred since the restriction appears in Article I and you seem to believe that Article I only contains items concerning the legislature. But Article I also contains restrictions on the states. So the question of who may and who may not suspend habeas corpus is not specifically limited to the legislature, and the question of who may suspend it has never been addressed by the Supreme Court.
Only by answering the question of whether or not the legislature had suspended the writ could that question be decided.
Except that you need to read the entire decision, not just the parts that, taken out of context, appear to support your position. Ex Parte Bollman & Swartwout, as the Chief Justice pointed out, involved whether the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to the Supreme Court. It did not involve who could suspend habeas corpus since it had not been suspended.
So instead of obiter dictum, Marshall's statement that the suspension of the writ is a legislative power is the foundation for the decision, not extranneous to it.
You are mistaken. Since habeas corpus had not been suspended by anyone at the time of Bollman and Swartwout it was not a question for the court to decide. The Chief Justice's comments were indeed in dicta, and were not legally binding.
It looks to have started out with a lot of good stuff about affirmative action and what-not... before it devolved into something more suited to our WBTS crowd.
No matter, it seems my opinions on the WBTS and Lincoln are not nearly as well formed as those I retain on whether or not the government is an appropriate mechanism for "helping" the "less fortunate." Very little to debate there, if you ask me.
[Wlat 328] I didn't say that Butler was running for office, I said he was -seeking- office. Butler never, after 1865, gave up trying to regain the power he had during the war. He didn't -plan- on dying in 1893. This story of his alleged meeting with President Lincoln in April, 1865 is of a piece with that.
[Wlat 328] Discussion over on the ACW moderated newsgroup indicates that Dr. Mark Neely says that the story of Lincoln's meeting with Butler and looking favorably on deporting all blacks is a complete fabrication. You should treat it as such.
[nolu chan 313] You claim that Butler was seeking office. You document the fact that Butler's Book was published in 1892. It appears that, in reality, Butler had not sought any political office in about 8 years. If you have anything whatever to support your claim that Butler was seeking any political office in 1892, please present it.
[nolu chan 280] You claim that Butler was seeking office. You document the fact that Butler's Book was published in 1892. It appears that, in reality, Butler had not sought any political office in about 8 years. If you have anything whatever to support your claim that Butler was seeking any political office in 1892, please present it.
Could you please provide whatever evidence or source material you relied upon to make your claim that Butler was seeking office in 1892?
Could you please explain how it would have benefitted Butler to lie about Lincoln and colonization, thereby providing a motive to lie about that subject, as you have claimed?
"Discussion over on the ACW moderated newsgroup indicated," is not a source. Discussion on a nationally syndicated radio talk show would be more prestigious than an AOL newsgroup. Discussion on a nationally syndicated radio talk show indicated that George Bush was actually a lizard. Really, that is what was indicated by David Icke, author of The Reptilian Connection. It was in a published book and on a nationally syndicated talk show. You should accept it. This way you will be prepared when the news breaks that the whole world is really being run by shape-shifting lizards.
Mark E. Neely, Jr. is the author of The Fate of Liberty: Abraham Lincoln and Civil Liberties. Chapter 8 is entitled The Irrelevance of the Milligan Decision. At page 184 one may read, quoting Edward S. Corwin, the McCormick Profession of Jurisprudence at Princeton University, "To suppose that such fustian would be of greater influence in determining presidential procedure in a future great emergency than precedents backed by the monumental reputation of Lincoln would be merely childish."
See, one learns something every day. Legal precedents backed by the monumental reputation of Lincoln outweigh fustian legal precedents of the United States Supreme Court.
It is in a book, and discussion around the brigade water fountain indicates the author is highly thought of. Dicky Dunn said it. It must be true. I don't even know any longer why the Supreme Court bothers to waste its time.
It is definitely a source, and properly credited for what it is.
Dr. Neely has won a Pulitzer Prize. He's written at least three well received ACW books, "Last Best Hope of Earth", "Southern Rights: Political Prisoners and the Myth of Confederate Constitutionalism" and "The Fate of Liberty". The latter won the Pulitzer Prize in 1992.
Here is what I see on the ACW moderated group:
"Of course he [President Lincoln] had a chance. He simply dropped the issue. Ben Butler claimed the contrary, citing a talk with Lincoln at war's end, but Butler was rather silent about the conversation at the time, to put it nicely, and Mark Neely's suggested that Butler was manufacturing a tale."
Now, you can discount that, fine with me. I don't need a doctorate to figure out that Butler --probably-- made up the whole thing. He's the only source, and that is not credible. When you -push- this story, -you- are not credible.
Walt
Abraham Lincoln did consider slaves to be property. Try Matson v. Rutherford (111. Cir. Ct. 1847). Lincoln argued that Jane Bryant and her four children, as escaped property, should be returned to Robert Matson.
By continuing to push opinion from an AOL chat room --you-- are not credible.
I know not enough --dashes-- or *stars* to get the meaning across.
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