Lincoln's Unconstitutional Suspension of Habeas Corpus - an analysis of an impeachable offense

12/29/2002 | myself

[GOPcapitalist]

I. The Suspension of Habeas Corpus:
Less than two months after assuming office as President, Abraham Lincoln wrote to General Winfield Scott in a letter unilaterally authorizing him to make arrests in the suspension of the writ of habeas corpus for reason of "public safety" in locations " between the City of Philadelphia and the City of Washington." On May 10, 1861 Lincoln extended this suspension to the state of Florida, again by unilateral proclamation as chief executive. On July 2nd, he again unilaterally extended suspension authority to the military "between the City of New York and the City of Washington." Additional suspensions of the writ were ordered unilaterally by Lincoln through the remainder of the war. The merits of Lincoln's unilateral suspension of habeas corpus have long been debated, but the act itself immediately raises another question of constitutionality. Though Lincoln acted to suspend the writ, nowhere in the United States Constitution does the president have this power and in fact it is given instead to Congress by any plain reading of the document. Lincoln denied this, asserting "Now it is insisted that Congress, and not the Executive, is vested with this power [suspension of habeas corpus]. But the Constitution itself, is silent as to which, or who, is to exercise the power." As any plain reading of the Constitution reveals, this claim is dubious.

Lincoln himself indicated his awareness of the constitutional issue his action raised, and on May 30 wrote to Edward Bates "Will you do the favor to confer with Mr. Johnson and be preparing to present the argument for the suspension of the Habeas Corpus." He presented his argument for unilateral secession to Congress when it arrived back in session on July 4th. The issue has been a point of contention against Lincoln ever since, but also one that his supporters have defended and sought to legitimize. Some have argued that the circumstances of 1861 permitted Lincoln to suspend the writ or that the Constitution is not clear about who may suspend it.

Arguing to this end, Justice William Rehnquist told an Indiana University law school class that  "The question of whether only Congress may suspend it has never been authoritatively answered to this day," giving support to Lincoln's action. This statement invites an historical inquiry of what the Constitution says on the habeas corpus matter as well as a reading of its statements in historical context prior to Lincoln's suspension. A thorough examination of that record quickly establishes a slate of historical authorities identifying the Constitution's habeas corpus clause in a way contradictory to Rehnquist's statement and in conflict with Lincoln's actions. In addition the historical evidence indicates that Lincoln not only violated the U.S. Constitution by suspending habeas corpus, but in doing so his behavior was recklessly negligent of the authority of the other branches in the U.S. government and significantly exceeded his own office's vested powers.

II. The Suspension of Habeas Corpus in the U.S. Constitution:
The immediate source of information pertaining to the Constitution's powers of suspension for habeas corpus appears in the document itself. The clause pertaining to habeas corpus appears in Article I, Section 9, Clause 2 and reads simply:

"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."

Lincoln asserted this authority permitted him to act unilaterally, claiming on July 4 that "the Constitution itself, is silent as to which, or who, is to exercise the power" of suspending the writ. Even the simplest reading of the Constitution reveals immediately that this is simply not so and that the power to exercise this suspension is given to Congress, not the executive. The clause of suspension appears in Section 9 of the first Article, which clearly identifies itself as pertinent to the legislature. This article's opening sentence goes so far as to assert that the powers contained within it, of which the second clause of Section 9 is one, are specifically legislative:

"All legislative Powers herein granted shall be vested in a Congress of the United States"

This assertion provides direct textual proof that Lincoln was in error, as in fact the Constitution was anything but silent as to who possessed the suspension authority. Further textual evidence is found throughout Section 9, which lists several limitations on the power of Congress, such as with habeas corpus (which the clause says may only be suspended under rebellion, invasion, or need for public safety).  Every other clause of the eight in the section directly identifies itself as a clause applying to the power of Congress. Clauses 1 and 8 mention Congress by name. Clauses 3 and 7 specifically mention the making of "law." Clauses 4 and 5 specifically state restraints on the laying of taxes and duties, which is a power granted to Congress. Clause 6 asserts restrictions upon the regulation of commerce between states, a self evident matter of the national legislature in application. In short, the seven other clauses in Section 9 of Article I indisputably pertain to the powers of Congress. It is therefore absurd to believe that the founding fathers would have inserted a power intended for any branch other than Congress in the middle of Section 9.

III. The Suspension of Habeas Corpus and the Constitution's Framing:
Aside from the Constitution itself, perhaps the strongest source of information about its meaning is found in the documents of the founding fathers who drafted and debated the document. James Madison's extensive notes on the debates at the Constitutional Convention in 1787 provide one of the clearest historical records available about the document's drafting. Not surprisingly, Madison's notes detail the habeas corpus clause's introduction and debate before the convention. Keeping with the indications given in the text itself, the debate clearly indicates that the suspension power was given to Congress. The habeas corpus clause first appeared on August 20th in a set of resolutions put forth by Charles Pickney:

"The privileges and benefit 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."

Pickney's original resolution specifically places the suspension power with "the Legislature." Upon its entry as a proposal, this resolution was referred to committee for consideration. Madison's notes indicate that on August 28 Gouverner Morris moved to adopt the habeas corpus clause before the convention as a whole, offering the language that exists in the Constitution today. Affirming the textual reading of the document and in conflict with Lincoln's claims, the Constitutional Convention had placed the power with Congress.

Following the convention in 1787, the Constitution went up for ratification before the states. This initiated a prominent ratification debate involving many of the convention's participants in which the document's proponents and opponents argued its merits with intense detail. The writings that were published during ratification are now known to us as the Federalist Papers and the Anti-Federalist Papers. Robert Yates, a delegate to the convention arguing on the anti-federalist side, listed some of the Constitution's details including habeas corpus in one of his essays. Affirming the opposite of Lincoln's contention, Yates wrote in Anti-Federalist No. 9, "Brutus," that:

In the same section it is provided, that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion and invasion, the public safety may require it." This clause limits the power of the legislature to deprive a citizen of the right of habeas corpus, to particular cases viz. those of rebellion and invasion; the reason is plain, because in no other cases can this power be exercised for the general good.

Anti-Federalist No. 16 "Federal Farmer," also identifies habeas corpus with the legislature. It's author is believed to have been the name used by Richard Henry Lee of Declaration of Independence fame, though there is some doubt to the exact author:

"The people by adopting the federal constitution, give congress general powers to institute a distinct and new judiciary, new courts, and to regulate all proceedings in them, under the eight limitations mentioned in a former letter; and the further one, that the benefits of the habeas corpus act shall be enjoyed by individuals."

In fact, readings of the Constitution which identified the habeas corpus suspension power with the Congress without contention appear throughout the ratification debate. Moving from New York to Massachusetts' ratification process, references to the habeas corpus clause identify it similarly. A delegate to the Massachusetts convention, Judge Francis Dana, addressed the clause while arguing for ratification with John Hancock. Dana's speech is partially recorded, in which he also identifies the suspension power with Congress without second thought or contention:

"The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power [of suspending habeas corpus] 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."

While the Constitutional Convention's records and the ratification debates provide clear evidence that the founding fathers extended the suspension power in question to Congress, perhaps the greatest authority on the matter is with one of the greatest of the founding fathers, Thomas Jefferson. Reflecting on the Constitution's early days in his 1821 autobiography, Jefferson also placed the suspension power for habeas corpus with the Congress. Jefferson wrote:

 "Those respecting the press, religion, & juries, with several others, of great value, were accordingly made; but the Habeas corpus was left to the discretion of Congress, and the amendment against the reeligibility of the President was not proposed by that body."

The remarkable consistency among the founding fathers on this issue is clear - contrary to Lincoln's later claims, the Constitutional power to suspend habeas corpus in times of rebellion was extended to the Congress and not the President.

IV. The Suspension of Habeas Corpus as Viewed by Early Constitutional Scholars:
The early 19th century produced two prominent legal commentaries on the United States Constitution by scholars. The first, published in 1826, was William Rawle's A View of the Constitution of the United States of America. Rawle was a distinguished legal advisor and friend of Benjamin Franklin who had also been offered the job of Attorney General by George Washington, though he declined. Rawle's commentary spoke on the issue of suspending habeas corpus in Chapter 10:

"The Constitution seems to have secured this benefit [habeas corpus] to the citizen by the description of the writ, and in an unqualified manner admitting its efficacy, while it declares that it shall not he suspended unless when, in case of rebellion or invasion, the public safety shall require it. This writ is believed to be known only in countries governed by the common law, as it is established in England; but in that country the benefit of it may at any time be withheld by the authority of parliament, whereas we see that in this country it cannot be suspended even in cases of rebellion or invasion, unless the public safety shall require it. Of this necessity the Constitution probably intends, that the legislature of the United States shall be the judges. Charged as they are with the preservation of the United States from both those evils, and superseding the powers of the several states in the prosecution of the measures they may find it expedient to adopt, it seems not unreasonable that this control over the writ of habeas corpus, which ought only to be exercised on extraordinary occasions, should rest with them. It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power"

The second prominent legal commentary was offered in the 1833 publication Joseph Story's Commentaries on the Constitution of the United States. Story, a Justice on the United States Supreme Court, was considered one of the most important legal minds of his day. In Book 3, Chapter XXXII, § 1336 Justice Story wrote:

"It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge, whether exigency had arisen, must exclusively belong to that body."

Though he disagreed with Rawles on other issues, the two clearly agreed on who had the power to suspend habeas corpus, and that was Congress.

V. The Court Rules on the Suspension of Habeas Corpus:
In addition to the overwhelming historical evidence against Lincoln's interpretation and actions regarding habeas corpus, the standing precedent of the United States Supreme Court also holds that Congress has the power to suspend the writ. A precedent on the matter was handed down in 1807 by Chief Justice John Marshall. In the case of Ex Parte Bollman and Swartwout Marshall affirmed what had been known without contention by the founding fathers - that the suspension power was given to Congress. His decision read:

"The decision that the individual shall be imprisoned must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case and in Burford's case. 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. That question depends on political considerations, on which the legislature is to decide."

It is accordingly of little surprise that this precedent was cited in 1861 when Lincoln's suspension of habeas corpus was challenged in court. In May 1861 federal authorities acting under Lincoln's order arrested John Merryman without charges and imprisoned him in Fort McHenry near Baltimore. Merryman petitioned for a writ of habeas corpus from the judiciary and

his case went before the U.S. Circuit Court in Maryland. Chief Justice Roger Taney of the U.S. Supreme Court, who was serving his circuit capacity in the court, received the case and issued a writ ordering General Cadwalader, the imprisoner, to produce the body of Merryman before his court with a statement of charges for the arrest. Cadwalader refused the writ, informing Taney that Lincoln had suspended habeas corpus. Taney then dispatched a U.S. Marshall ordering him to appear before the court on the matter, to whom entry was refused upon the attempt at delivery. Taney accordingly issued a ruling for the case Ex Parte Merryman in which he affirmed Marshall's precedent and struck down Lincoln's order to suspend habeas corpus as unconstitutional. His ruling declared:

"With such provisions in the constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law."

The court's ruling was delivered to Lincoln, informing him of the unconstitutionality of his action as ruled by the Circuit Court. Legally, this left Lincoln with the option of either abiding by the decision or appealing it to the United States Supreme Court. Lincoln did neither, and simply ignored the judiciary's ruling against him. The action violated the constitutional judiciary system which, according to the landmark Marbury v. Madison ruling of 1803, governed Lincoln's actions. John Marshall had ruled in Marbury that "The judicial power of the United States is extended to all cases arising under the constitution."

In addition, Taney implicated Lincoln for extending the his suspension of habeas corpus into the hands of a military authority. This action violated the constitutional system of the judiciary and, as Taney implied, resembled a central grievance against King George III cited in the Declaration of Independence:

"HE has affected to render the Military independent of and superior to the Civil Power"

VI. Arguments for  Lincoln's Suspension of Habeas Corpus Analyzed:
As noted, Lincoln outlined his arguments for a unilateral executive suspension of habeas corpus in his July 4, 1861 address to Congress. The central contention of his speech, that the Constitution does not say who may suspend habeas corpus, is without merit as has been shown. Additional supporting arguments were offered by Lincoln and others at the time, but they are similarly flawed.

ARGUMENT 1: Lincoln offers as an argument that "it cannot be believed the framers of the instrument intended, that in every case, the danger should run its course, until Congress could be called together."

Lincoln's argument here is flawed, as the Constitution extends the power to call Congress back into session, which Lincoln could have done in 1861. Instead he chose not to and Congress remained out of session from early March to the beginning of July. Therefore it was Lincoln who failed in to exercise this constitutional power that prevented Congress from being able to consider the suspension. Meanwhile, as has been shown, the framers indisputably intended the decision to be in Congress' hands.

ARGUMENT 2: Supporters of Lincoln's action offered as an argument that Gen. Andrew Jackson had suspended habeas corpus after the Battle of New Orleans during the War of 1812 and was later commended for the act by Congress.

This argument is flawed as well. The existence of an anecdotal case in which an improper authority suspended habeas corpus without consequence does not render the rule void for all other cases. That congress approved of a suspension by an improper authority after the fact does not make it constitutional either because the Constitution prohibits legislation after the occurrence of an act that alters the legal consequences of that act. Article I, Section 9, Clause 3 states that "No...ex post facto Law shall be passed."

ARGUMENT 3: Supporters of Lincoln's action note that Congress passed measures supporting the suspension of habeas corpus after they came back into session in July 1861.

Again this argument does not absolve Lincoln of his action as it functions in an ex post facto manner.

CONCLUSIONS:
The overwhelming amount of historical evidence clearly contradicts Lincoln's assertion that the Constitution "is silent as to which, or who, is to exercise the power" of suspending habeas corpus. Though legal relativists, loose constructionists, and even some otherwise reliable constitutionalists maintain that Lincoln's action of suspending habeas corpus was without constitutional flaw, the volume of evidence renders such a position insupportable. In addition to the unconstitutional suspension of habeas corpus, there remains the issue of the Merryman ruling. Lincoln's action of ignoring this ruling by failing to either abide by it or appeal it to the Supreme Court constitutes a violation of the United States judiciary branch's authority that remains on his record even if one were to hypothetically permit its unlikely reversal had it been appealed. The sum of these actions by Lincoln amount to clear and material violations of the United States Constitution. It is further not unreasonable to conclude that in other times, similar actions by a president of the United States would have been cause for his impeachment and removal from office.

[Non-Sequitur]

Try reading the case for once. The part on suspending habeas corpus is the point on which the final question of the ruling turns.

I have read it. The issue on what the court was ruling was in the fourth or fifth paragraph:

"The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, 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 this court."

That was what the court was deciding. Habeas Corpus had never been suspended by Congress or the President so the court was not ruling on who could legally suspend it. Chief Justice Marshall's comments were issued in dictum. Since it was an opinion of the Chief Justice unrelated to the issue before the court, it had no binding authority in law.

[GOPcapitalist]

I have read it. The issue on what the court was ruling was in the fourth or fifth paragraph: "The inquiry therefore on this motion will be, whether by any statute, compatible with the constitution of the United States, 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 this court."

Yeah, and that statute's compatability with the Constitution comes from its relation to the legislative involvement in habeas corpus. Now look at HOW that question was answered. It is at the end of the ruling:

"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. That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws. The motion, therefore, must be granted."

In other words, the court's ability to award the writ derives from acts of the legislature, which in turn are governed in consistency by Constitution's suspension clause of Article I, Section 9. That the suspension clause pertains to the legislature is the point on which the case turns. It is therefore NOT the incedental dictum you purport it to be.

Habeas Corpus had never been suspended by Congress or the President so the court was not ruling on who could legally suspend it.

An act of suspension need not occur for the court to determine that the suspension clause applies to the legislature. This may be done alternatively when that clause is used as grounds to determine the legislature's constitutional jurisdiction in habeas corpus matters, which is exactly what Bollman did.

Chief Justice Marshall's comments were issued in dictum.

The opinion itself indicates otherwise as it was on those very comments that the ruling was made, hence their conclusion with "The motion, therefore, must be granted"

Your claim that the suspension clause statement, the same statement upon which the case itself was decided, was "dictum" is nothing more than a result of fraudulent motives, an absence of education, or a combination of both on your part.

[Non-Sequitur]

An act of suspension need not occur for the court to determine that the suspension clause applies to the legislature.

Yes it does. The Supreme Court can only rule on issues which appear before it, which means that it is ruling on the Constitutionality of some act which has been committed. It cannot issue a ruling on something which has not happened. That would be issuing an advisory ruling and the Court is Constitutionally prohibited from doint that. Habeas Corpus had not been suspended, the court cannot rule on the Constitutionality of who suspended it.

"The motion, therefore, must be granted"

Yeah, it was. Bollman and Swarthout had petitioned the court to issue a writ of habeas corpus and it was granted. What else could it have done? How could it grant any motion on the question of the suspension of habeas corpus when there had been no such suspension?

Your claim that the suspension clause statement, the same statement upon which the case itself was decided, was "dictum" is nothing more than a result of fraudulent motives, an absence of education, or a combination of both on your part.

Based on your asinine arguements in your vanity post, I question whether you have any understanding of how the Supreme Court works in the first place. How can the court rule on something that did not happen?

[GOPcapitalist]

Yes it does.

No. It does not. If the court recognizes the suspension clause as legislative in order to establish the legislative authority over habeas corpus in a particular case, it has effectively ruled on that clause even though no suspension occured.

The Supreme Court can only rule on issues which appear before it

The issue of whether the legislature had jurisdiction over habeas corpus to extend the issuing of writs within the court system came before the court. The court ruled on the grounds that the suspension clause was legislative.

which means that it is ruling on the Constitutionality of some act which has been committed.

The act of establishing a judiciary system with the writ power had been committed by way of authority seated in the suspension clause, and that was the case. Hence the court could and did rule on the suspension clause.

Habeas Corpus had not been suspended, the court cannot rule on the Constitutionality of who suspended it.

Again, you are missing the issue. The question settled in Bollman was not who suspended habeas corpus. It was who had habeas corpus jurisdiction under the Constitution, and in finding that jurisdiction the court ruled that the suspension clause applied to the legislature. In simplified terms, they stated that the court can issue writs because the judiciary was set up to issue writs, and the legislature who set up that judiciary to issue writs did so under the constitutional authority implicit to the suspension clause. Since the suspension clause directed that the legislature could take away habeas corpus in times of emergency, the court reasoned, the jurisdiction of issuing writs of habeas corpus could accordingly be extended by the legislature, which had vested that writ power in the courts.

Yeah, it was. Bollman and Swarthout had petitioned the court to issue a writ of habeas corpus and it was granted. What else could it have done?

Theoretically although erroniously, it could have found that the legislature did not have the power to set up the judiciary with jurisdiction over the writ of habeas corpus. In that case, the power of the court to issue a writ would have been unconstitutional and the motion would have been denied. But that did not happen because of the court's ruling, which rested on the suspension clause being a legislative power.

Based on your asinine arguements in your vanity post

Call it all the names you like. You and I both know who has the stronger case though. I question whether you have any understanding of how the Supreme Court works in the first place.

Question what you may. Without reason to support your question though it carries little weight.

How can the court rule on something that did not happen?

You're missing the issue again, and perhaps intentionally so. The court didn't rule on something that had not happened. They ruled on how an existing clause in the Constitution vested power in the legislature, which in turn was grounds for the legislature's involvement in that same area.

[Non-Sequitur]

The issue of whether the legislature had jurisdiction over habeas corpus to extend the issuing of writs within the court system came before the court. The court ruled on the grounds that the suspension clause was legislative.

Nonsense. Habeas corpus had not been suspended, not by the President, not by Congress, not by anybody. How could an issue which had not happened appear before the court?

The question settled in Bollman was not who suspended habeas corpus. It was who had habeas corpus jurisdiction under the Constitution, and in finding that jurisdiction the court ruled that the suspension clause applied to the legislature.

Again, nonsense. The Supreme Court cannot rule on the legality or illegality of something that hasn't happened. The question settled in Bollman was whether the Supreme Court could issue a writ of habeas corpus. That was what was decided, not who could suspend it.

Theoretically although erroniously, it could have found that the legislature did not have the power to set up the judiciary with jurisdiction over the writ of habeas corpus. In that case, the power of the court to issue a writ would have been unconstitutional and the motion would have been denied. But that did not happen because of the court's ruling, which rested on the suspension clause being a legislative power.

Utter nonsense yet again. Habeas corpus had not been suspended. Marshall's comments on who may suspend it were a complete dictum and were not binding in any way.

You and I both know who has the stronger case though.

If you mean you have provided evidence supporting your belief that only Congress may suspend habeas corpus then I agree with that. I have always said that had Lincoln appealed the Ex Parte Merryman decision to the full Supreme Court then the court would most likely have ruled against him. If you mean that you have made the case that the court has ruled that only Congress can suspend habeas corpus, then I disagree completely. Chief Justice Rehnquist is right and you are wrong.

You're missing the issue again, and perhaps intentionally so. The court didn't rule on something that had not happened. They ruled on how an existing clause in the Constitution vested power in the legislature, which in turn was grounds for the legislature's involvement in that same area.

And you are missing, intentionally or otherwise, the fact that the Supreme Court cannot issue a ruling on something that has not happened. I would suggest that any first year law student has a grasp of this simple fact which keeps escaping you. The question of who may suspend habeas corpus was not an issue in the case before the Court so your claim that Bollman and Swarthout somehow support your agenda is a complete canard. Chief Justice Rehnquist has recognized this, any competent lawyer would recognize this, yet you cling to your interpretation no matter how wrong it is. Do so if you wish, but the title of your ego post is wrong.

[WhiskeyPapa]

Hence the argument is between my evidence and your evidence.

The argument is between your intepretation and that of the Chief Justice of the United States.

Walt

[Colt .45]

"And nowhere is it denied the president; the Constitution is silent on presidential power to suspend the Writ."

Actually Walt, you're quite wrong. The Constitution specifically delegates that power to the "legislature". But here is more proof for your edification -

'In question was the second clause of Article 1, Section 9, of the United States Constitution, which provides, "The priveledge of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it".

This provision corrresponds to the clauses in the Petition of Right, 3 Charles 1, Chapter 1 (1628), limiting the discretion of the King to suspend the writ of habeas corpus, and on this basis it might be construed to limit the discretion of the President. Lincoln so read it, and, since in his judgement there was a rebellion underway and the public safety required it, he thought he had the power on his own to suspend the writ.

But Lincoln was wrong. A number of important prerogatives of the King -- e.g., coining money, fixing the standard of weights and measures, declaring war, and raising armies -- had been transferred to Congress, and the same was true for the suspension of the writ of habeas corpus, as is plain from the debates of the Philadelphia Convention. And the clause on suspending the writ was understood from the beginning as a limitation on the power of Congress, -- not the power of the President. So obvious to this reading of the founding fathers of the United States that, on January 22, 1807, President Thomas Jefferson sent a message to Congress, asking for a suspension of the writ of habeas corpus for three months with respect to the persons charged on oath with treason and certain related crimes, and although there was a seemingly dangerous rebellion underway, Congress denied the request.'

It is obvious from the framing of the second clause of Article 1, Section 9 of the United States Constitution that the suspension of the Writ of Habeas Corpus was concieved to be the prerogative of Congress Most particularly, the clause was introduced as an express restriction upon legislative power, and in that shape adopted with immaterial changes: - it so appears in 5 Elliot's Debates 445-446, 484, 536, 561, - Tansill Documents 571-572, 627, 707, - 2 Ferrand's Records 340-342, 438, 576, 596, 656 (Madison's Notes, August 20 and 28, September 10, 12, and 17, 1787).

But the most damning evidence comes from the Chief Justice Roger B. Taney's own judgement against Lincoln's unconstitutional act when he stated "If the authority which the constitution has confided in the judiciary department and the judicial officers may thus, upon any pretext or under any circumstances, be usurped by military power at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds his life, his liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found." Very true were these words, but Merrymen remained in confinement, and thousands of others like him were imprisoned on the mere suspicion of disloyalty measured, not by legal principles, but partisan ideology.

'Taney sent his writ, his order for Merryman's release, and his opinion to the President, requesting of him to take care that the laws be faithfully executed, but Lincoln placed the papers in his desk, and went on fighting the war against the South, which the power brokers and financiers backing his party had demanded. The evidence is convincing that Lincoln went a step further, and personally ordered the arrest of the Chief Justice. The arrest was never carried out, because it was deemed politically too risky.' - 'A Constitutional History of Secession'- John Remington Graham

In 1863 Congress finally authorized the executive authority for suspension of the writ, however, in 1861 no such authority lawfully (i.e. constitutionally) existed for the President of the United States. Lincoln clearly was a tyrant.

[GOPcapitalist]

The argument is between your intepretation and that of the Chief Justice of the United States.

Unless Bill Rehnquist is secretly a freeper and he's posting his interpretation here, that is simply not so. Instead, you are citing him as an authority to counter the evidence I have cited. And as I have previously noted, I think we both know who has the stronger evidence.

[GOPcapitalist]

Nonsense.

No, not nonsense. It's right there in the final question of the case.

Habeas corpus had not been suspended, not by the President, not by Congress, not by anybody.

Straw man. I have not suggested that to begin with.

How could an issue which had not happened appear before the court?

It didn't, but that does not mean that a case involving legislative power over habeas corpus did not come before the court. In fact, such a case did in Bollman, and on the grounds that Article I, Section 9, Clause 2 applied to the legislature, the Bollman ruling found that the legislative act placing the writ-issuing jurisdiction in the court was constitutional.

Again, nonsense.

Again, not so. It's right there in the final statements of the case. Try reading it for once.

The Supreme Court cannot rule on the legality or illegality of something that hasn't happened.

Straw man. That is not what the case was about. The case was about the legislature's authority to designate the judicial system with the writ power. In order to determine that ability's constitutionality, the court had to find what in the Constitution let the legislature do what it did. In answer to that question, the court cited the legislative involvement in setting up the judiciary combined with its own jurisdiction over the writ. The location of that jurisdiction is in the suspension clause. The question settled in Bollman was whether the Supreme Court could issue a writ of habeas corpus.

That, and whether or not the legislature had the constitutional grounds to designate the court as the instrument where the writ was to be issued. In determining those grounds the court used the suspension clause:

"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. That question depends on political considerations, on which the legislature is to decide. Until the legislative will be expressed, this court can only see its duty, and must obey the laws. The motion, therefore, must be granted."

Pay close attention to the last two sentences in particular. The ruling is saying in the plainest of terms that the constitutional power designating the judiciary as issuer of the writ comes from the fact that the Constitutional jurisdiction to do so is in the legislature. Under that jurisdiction, the legislature had expressed its will by designating the court as the issuer of the writ. Therefore it was constitutional for the court to issue the writ, which permitted the motion to be granted to Bollman and Swartwout.

In simpler terms, the court observed that Article I, Section 9, Clause 2 was legislative. Because it was legislative, legislation pertaining to its subject and conducted within its bounds was constitutional.

Utter nonsense yet again.

No, not really. Just a hypothetical that could have happened in error, though it did not.

Habeas corpus had not been suspended.

Straw man.

Marshall's comments on who may suspend it were a complete dictum and were not binding in any way.

Not so, in as far as they say who the clause pertains to. That is so because the issue of who the clause pertains to determines whether or not the legislature acted constitutionally when it set up a judiciary system with the writ.

If you mean that you have made the case that the court has ruled that only Congress can suspend habeas corpus

Again you mistake me with that implication. I mean to say that the court has ruled that Article I, Section 9, Clause 2 applies to the legislature - it provides the legislature's ability to designate the court with the writ. Since that clause is also the only way to suspend habeas corpus, determining its legislative nature necessarily sets up a logical situation that cannot be carried through with any other conclusion than that the legislature alone can suspend the writ.

If that is confusing you, think of it this way:

Let's say that A represents the notion that legislature to designate the writ to the judiciary through Article I, Section 9, Clause 2.

At the same time, B represents the notion that Article I, Section 9, Clause 2 is a constitutional power of the legislature.

In Bollman the court ruled that A was constitutional because B was true.

Now, let's introduce C, the fact that the Constitution permits the suspension of habeas corpus only through Article I, Section 9, Clause 2.

As a matter of the obvious, if B is true, C may only be done by the legislature.

In Bollman the court ruled A because B was true. Since B was found true in Bollman, the case by necessity means that C may only be done by the legislature. Anything else simply does not work.

[WhiskeyPapa]

Actually Walt, you're quite wrong. The Constitution specifically delegates that power [to suspend the Writ] to the "legislature".

And says nothing about the president's power regarding the Writ.

You don't need to convince me; you need to convince the Chief Justice.

[WhiskeyPapa]

Unless Bill Rehnquist is secretly a freeper and he's posting his interpretation here, that is simply not so.

It is unless John Marshall has come back from the dead.

Walt

[Non-Sequitur]

I'm curious about something. Have you found any lawyers who agree with your position? Any papers written on Bollman and the suspension of habeas corpus? Or is it truly your contention that you alone have uncovered something that has been missed by every legal scholar this country has produced for the last 140 years?

[WhiskeyPapa]

'Taney sent his writ, his order for Merryman's release, and his opinion to the President, requesting of him to take care that the laws be faithfully executed, but Lincoln placed the papers in his desk, and went on fighting the war against the South, which the power brokers and financiers backing his party had demanded.

Typcial neo-reb lying crap.

The "brokers and financiers" wanted appeasement and conciliation at almost any cost.

Walt

[GOPcapitalist]

It is unless John Marshall has come back from the dead.

In other words, you are conceding that Bill Rehnquist is not a freeper. That being the case, he is not here to post his interpretation. Instead it is only cited as an authority by persons including yourself, making it of no more potential than an average run of the mill appeal to authority.

[GOPcapitalist]

The "brokers and financiers" wanted appeasement and conciliation at almost any cost.

That's not what the New York Times said on March 30, 1861:

s. With the loss of our foreign trade, what is to become of our public works, conducted at the cost of many hundred millions of dollars, to turn into our harbor the products of the interior? They share in the common ruin. So do our manufacturers. Is it just for Government to permit a tariff, enacted for their benefit, to be so avoided as to leave them worse off than before? Is it either dignified or provident to have the ammount of its revenues depend upon the acts or policy of revolted provinces, who will take any possible means of weakening us to secure impunity to themselves? The mode by which our revenue laws are now evaded, we have fully shown. New Orleans de jure is a part of the United States, but not de facto. Once at New Orleans, goods may be distributed over the whole country duty free. The process is perfectly simple. No remedy is suggested except force or treaty. We see no other.... The South well know our strength. If they understoood that it was to be vigorously exerted, unless we had fair play, they would concede it at once. But they rely upon our inaction as a means of gaining their ends. Let us put a speedy end to all such expectations, and hold ourselves in readiness to accept promptly any alternative that our interest our our duty may impost upon us."

[Colt .45]

"Typcial neo-reb lying crap."

So now you're saying that Marshall Lamon is lying also .... he had the warrant for Taney's arrest, and the orders to do so given to him by then President Lincoln and noted such in his own papers which are still in his library. Another person also witnessed and corroborated this verbal order ... Professor Lieber (of 'The Lieber Code' fame), and both Lieber and Lamon were true blue Yankees. You are full of sh*t Walt! You are the type of buffoon that a dictatorial type of government needs to keep fostering its own lies as being believable. You must be dumb enough to believe that the US government is pure, white and holy in all of its actions. Keep researching the truth and someday your eyes just might get opened.

[Colt .45]

"Have you found any lawyers who agree with your position? Any papers written on Bollman and the suspension of habeas corpus?"

You asked and here is your answer ... John Remington Graham ... a Minnesota lawyer. He wrote the book, just released in 2002 titled 'The Constitutional History of Secession'. Buy it, read it, then you can apologize for being ignorant later.

[Non-Sequitur]

Buy it, read it, then you can apologize for being ignorant later.

What did he have to say on Bollman and the suspension of habeas corpus? Or haven't you bothered to follow the thread of the discussion?

[stainlessbanner]

Lincoln's comments in red:

When asked, as President of the United States, "why not let the South go?" his simple, direct, and honest answer revealed one secret of the wise policy of the Washington Cabinet. "Let the South go!" said he, "where, then, shall we get our revenue?"
-- Albert Taylor Bledsoe, Is Davis a traitor; or, Was secession a constitutional right previous to the war of 1861?, Baltimore: Innes & Company, 1866, pp. 143-144.

Another effort was made to move Abraham Lincoln to peace. On the 22nd, a deputation of six members from each of the five Christian Associations of Young Men in Baltimore, headed by Dr. Fuller, and eloquent clergyman of the Baptist church, went to Washington and had an interview with the President. He received them with a sort of rude formality. Dr. Fuller said, that Maryland had first moved in adopting the constitution, and yet the first blood in this war was shed on her soil; he then interceded for a peaceful separation, entreated that no more troops should pass through Baltimore, impressed upun Mr. Lincoln the terrible responsibility resting on him - that on him depended peace or war - a fratricidal conflict or a happy settlement.

"But," said Lincoln, "what am I to do?"

"Let the country know that you are disposed to recognize the Southern Confederacy," answered Dr. Fuller, "and peace will instantly take the place of anxiety and suspense and war may be averted."

"And what is to become of the revenue?" rejoined Lincoln, "I shall have no government, no resources!" [italics in original]
--Robert Reid Howison, "History of the War", excerpted in Southern Literary Messenger, Vol. 34, Issue 8, August 1862, Richmond, VA., pp. 420-421.

And another similar account of the preceding:

"But," said Mr. Lincoln, "what am I to do?"
"Why, sir, let the country know that you are disposed to recognize the independance of the Southern States. I say nothing of secession; recognize the fact that they have formed a government of their own; that they will never be united again with the North, and and peace will instantly take the place of anxiety and suspense, and war may be averted."

"And what is to become of the revenue?" was the reply. "I shall have no government - no revenues."
--Evert A. Duyckinck, National history of the war for the union, civil, military and naval. Founded on official and other authentic documents, New York: Johnson Fry & Co., 1861.
The meeting was written up in the Baltimore Sun 23 Apr 1861 edition.

[4CJ]

Typcial neo-reb lying crap. The "brokers and financiers" wanted appeasement and conciliation at almost any cost.

Guess again. Typcial neo-Linconlite lying crap. With the South departed, and the North facing economic devastion - the loss of its customers, suppliers and sugar daddy - the northern "brokers and financiers" wanted the South brought back into the fold at any cost.