Lincoln’s 'Great Crime': The Arrest Warrant for the Chief Justice

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."

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).

Almost everyone was a racist in the 19th Century. History is replete with examples a lot more egregious than Lincoln's statements.

Of course. Which doesn't nullify the point previously proven, which was that Lincoln's policy, until the end of the war and his death, inclined toward the common view that blacks, howbeit that they were human, were not members in good standing of North American European society, and that therefore a new place in the world had to be found for them. Which wasn't the United States.

I diverge somewhat from the other Southerners on this board in arguing that Lincoln was always an emancipator and abolitionist, from 1855, when he wrestled with the irreconcilable objectives of upholding the Constitution and effecting the abolition of slavery, to the end of his life.

His motive, however, appears to have been to remove the onus of hypocrisy from American professions of love of liberty. So he said in his letters (as recounted by David Donald in his 1999 biography, Lincoln), and having read them from a time when he was out of office and temporarily without immediate ambition, I took him at his word.

That didn't necessarily extend to making blacks into full members of American society, with full rights and the franchise.

And the prewar maneuvering around the Corwin amendment was, IMHO, a dumbshow put on by Lincoln, to satisfy public opinion (however much of it was still listening and openminded) that he had attempted compromise -- without any intention of compromising -- and setting the scene for the eventual outbreak of hostilities, for which he was determined to thrust the moral onus on the South, in order to bring Northern opinion to embrace war.

And from a legal standpoint, he also needed hostilities and shots fired, in order to justify crushing the South militarily, which IMHO was his actual policy, never admitted publicly, after 1856. His solution to his moral impasse in 1855 was to get an abolitionist national administration elected, precipitate war, and crush the South behind the aegis of "defending the Constitution and American liberty". He killed a lot of people to make this happen, and I lay these dead at his door. War was his policy, and he must bear the blame for instigating it -- and Davis and the Southerners must bear the blame for having played into his hands, for having given Lincoln his war, and having ruined the South by misplaying their hand.

The fact is, however, that Lincoln did work to pass the real 13th Amendment, which didn't only end slavery in the rebelling states but in the loyal border states as well.

Of course. The eventual 13th Amendment was, again IMHO, his real policy. That was the goal, from 1856 forward, of the Republican Party.

And if you're going to argue, as some have, that Lincoln only worked to pass that amendment because it had become politically impossible not to only proves that, even if it hadn't been at the beginning, by 1864 the war was seen in the north to be about slavery, among other things.

No, he wanted the amendment for itself -- I think it was his Holy Grail. And the propaganda to change the purpose and meaning of the war in Northern opinion was Lincoln's. Exhibit "A" is the Gettysburg Address, which he was only willing to articulate in 1863. He didn't deliver it after Antietam, for example, or when the Emancipation Proclamation was promulgated -- deliberately, IMHO, because he gauged that public opinion was not ready. After Gettysburg, after a huge Union victory on Northern soil, public opinion was ready, and he gave it to them -- and in two minutes overthrew the United States Constitution and the American Experiment.

There is nothing "wrong" with southern culture, or southern heritage, or even pride in the accomplishments of southern ancestors.

Nice of you to say so, but the practical problem is that kids are getting sent home from school, and Texas A&M students from East Texas threatened with expulsion both from the Corps of Cadets, and from the University, for having flag stickers and other gewgaws on their clothing, possessions, or, in the case of the Aggies, their personal-effects footlockers (actual case).

Moral shrimp like Foner, McPherson, and Jesse Jackson Jr. are driving this campaign of public condemnation. Jackson Junior, who I'm sure you know sits in the House of Representatives, got a public law passed that orders the National Park Service to change all the materials that they distribute to visitors, to add a political message that incriminates the South as a People. The rubber doesn't bite the road much harder than that. Too, the NAACP has as their next agenda item the purging of Confederate flags and symbols (statues, too? monuments?) from all public property, including the national military parks, by specific legal acts of condemnation and prohibition. What's next? Confiscation of the entire South by eminent domain, for use as a nuclear waste repository? That's the general direction we are going in, and yet here are professed conservatives, constructively aiding this kind of divide-et-impera, ideologically poisonous politics of attainder.

What is wrong is the hard-headed insistance that the "south was right" when the basis of the confederacy was so thoroughly flawed - legally and morally.

To admit that the Confederacy was morally flawed, you have to condemn the entire United States of America. Nothing was legal in the Confederacy, with respect to the "peculiar institution", that had not been legal under the United States. The Confederates were not Jacobins. They didn't produce radical manifestos or wondrously revolutionary Gortynian codes. What they did was reproduce the legal superstructure, with a few changes to suit themselves, of the United States, and to a great extent its constitutional language as well.

You cannot condemn the South by selective moral wrath, for shared shortcomings. That's the first point.

The second point is that much of this politically motivated moral condemnation is teleological in nature, and depends on the outcome of the Civil War to justify itself. Might makes right makes Southerners wrong. That is a fallacy.

Third point is that applying the moral and political norms and velleities of the 20th century to an anterior century is unjust to the people who lived that earlier time, and unhelpfully self-congratulatory. Our century, after all, has perfected the practices of war, and made abortion safe, legal, and ubiquitous -- as if nobody had ever heard of Jezebel, or her sin, which was to introduce a tophet to the holy city of Jerusalem, to celebrate the feral solemnities of Melqart.

There is more, but that will do for a start.

[cr #2077 to nc #2052] "Quote one word of discontent with the decision emanating from Justice Nelson, Catron, Campbell, Daniel, Wayne, or Grier." "This was your request. Clearly Justice Catron was unhappy with aspects of the Taney opinion. Case closed."

Actually, as a review of the conversation demonstrates, we were speaking within the context of your assertion in cr #2040 that "With his revised Dred Scott opinion, Taney created a monstrosity of a legal problem, because some of his opinion did not have the support of the majority of the Court." Your #2042 was another misleading, dishonest pile of your typical trash, you were well and truly nailed by nc #2052, and you are now trying to Clinton your way out from under your Clintonian dung heap.

But, no never mind. If you wish to make believe that any disagreement with any dictum, as opposed to the specified decision, will do, then I will avail myself to point out your further demonstration of gross public dumb.

To demonstrate a disagreement over just any old point in the Taney opinion, you sure did waste your time on an excursion to find an unofficial personal Catron letter with no complaint about Taney changing anything after the fact.

Why, hell, if you knew how to read a court decision, you would have realized that EVERY justice officially made some such statement of disagreement. Of course, even dumb or uninformed people understand that the two dissenting opinions disagreed with something Taney wrote. Had you have known what you were talking about, you would have known that the six concurring opinions also indicated some disagreement with something Taney wrote. Nobody joined with the Taney opinion in its entirety. All eight other justices disagreed with Taney about something and did so officially, on the record, in the dissenting or concurring opinion which they filed. (All six concurring justices agreed with the holding of the decision to the effect that jurisdiction was lacking because Scott was a slave, not a citizen of Missouri or the United States.)

Clearly, you are out of your depth and do not know how to read a court decision. When caught at Clintonizing the truth, you follow in the finest traditions of Slick Willy. Case closed.

[cr] With his revised Dred Scott opinion, Taney created a monstrosity of a legal problem, because some of his opinion did not have the support of the majority of the Court

As usual, blowing it out your butt.

Provide your evidence that the majority did not support the decision in Scott.

SEVEN justices formed the majority.

Quote one word of discontent with the decision emanating from Justice Nelson, Catron, Campbell, Daniel, Wayne, or Grier.

2,040 posted on 09/27/2004 2:42:58 AM CDT by nolu chan

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"Catron to Samuel Treat, May 31, 1857, Treat Papers, MHS. Concerning Taney's argument [regarding Negro citizenship], which he label a "dictum," Catron declared, "It cannot stand a moment in face of the dissenting opinions on this point." Fehrenbacher, pg 329, FN 20.

Perhaps this is why Taney rewrote it after the fact.

2,042 posted on 09/27/2004 3:03:08 AM CDT by capitan_refugio
[ Post Reply | Private Reply | To 2040 | View Replies | Report Abuse ]

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[nc #2052 documented that cr #2042 was a deliberately misleading partial quote that deliberately gave a false impression of what Fehrenbacher actually said.]

[Fehrenbacher] "Thus, on balance, the evidence seems to support the unorthodox view that Taney's ruling was indeed the Court's decision on the subject of Negro citizenship."

[Fehrenbacher] "Catron, it should be noted, was alone in insisting that Taney's argument on Negro citizenship, rather than his argument on the Missouri Compromise, was obiter dictum."

[nc] "The concurring justices concur with the holdings of the court except where they express differently within their concurring opinions.

2,052 posted on 09/27/2004 6:53:46 AM CDT by nolu chan
[ Post Reply | Private Reply | To 2042 | View Replies | Report Abuse ]

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To: nolu chan

"Quote one word of discontent with the decision emanating from Justice Nelson, Catron, Campbell, Daniel, Wayne, or Grier."

This was your request. Clearly Justice Catron was unhappy with aspects of the Taney opinion. Case closed.

2,077 posted on 09/27/2004 11:32:09 AM CDT by capitan_refugio
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[cr #2036] "Even worse, Taney’s racist rant disguised as jurisprudence turned both the
Declaration of Independence and the Constitution into empty promises in their common
foundation on the premise that 'all men are created equal,' making them serve as mere
window dressing for a brutal and backward system...."

I just love quoting Lerone Bennett, Jr. to you because your reaction always renders obvious
just how much you love Black people.

As Ebony editor and historian Lerone Bennett, Jr. pointed out, in
Forced Into Glory, pp. 315-20:

Lincoln was deceiving himself, and others, for he said in a statement that nobody quotes
that Negroes had no rights, natural or otherwise, that they could exercise anywhere in
America. This statement is so shocking that the best thing for us to do is to get out of
the way and let Lincoln speak:

Negroes have natural rights, however, as other men have,
although they cannot enjoy them here, and even
[Chief Justice Roger] Taney once said that "the Declaration
of Independence was broad enough for all men." But though
it does not declare that all men are equal in their attainments
or social position, yet no sne man will attempt to deny that
the African upon his own soil has all the natural rights that
instrument vouchsafes to all mankind.
(CW 3:79, italics added)

Here, then, ominously, is the White man's Declaration of Independence as defined by Abraham
Lincoln, a Declaration defined by race and geography and blood, a Declaration that agreed
practically with Roger Taney that Negroes had no civil and political rights in America that White
men were bound to respect.

Not the least of the ironies of this story is that the roots of Lincoln's political philosophy are to be
found in the vulgar idealism Henry Clay devised to explain why he continued to hold slaves and to
believe in the Declaration of Independence. In fact, large chunks of Lincoln's debate speeches --
Edgar DeWitt Jones counted forty-one references -- are taken bodily from Clay's mouth.
Following Clay, Lincoln said he had never tried to apply the principles of the Declaration of
Independence to slavery or the political rights of Blacks in America. On at least fifteen occasions,
he said publicly that the principles of the Declaration didn't require him or anybody else to do
anything about slavery in the South and Jim Crow in the North.

How in the world did the Lincoln patrol miss these statements? How in the world did they
overlook the repeated assertions (CW 2:266, 274, 385, 501, 520; DW 3:16, 222,249, 255,
276, 300) in which Lincoln said publicly that the "necessities" of whiteness negated any and all
eloquent statements he made about the Declaration of Independence and made it necessary to
enslave Blacks in the South and to subordinate them in the North?

How is it that I am the only one to read these words?

How is it that I am the only one to report in this context that Lincoln said -- you read
the words -- "Negroes have natural rights ... although they cannot enjoy them here."

To answer that question, and to clear up remaining complexities, let us question Lincoln,
history, and the Lincoln party.

Q: Why did Lincoln call the Declaration of Independence "the white
man's charter of freedom"?
A: He believed -- if words have any meaning -- that the Declaration
was the peculiar if not exclusive charter of White men and that it was
of White men, by White men and for White men.
Q: Most people in the world -- then and now -- were colored. Wasn't
it irrational to call a universal declaration a White man's charter?
A: Yes. Lincoln was irrational on the subject of race. So was slaveowner
Thomas Jefferson, who wrote the Declaration. So, to tell the truth, are most
of their modern-day interpreters.
Q: Did Lincoln believe Black men were included in the statement, "All
men are created equal"?
A: Yes and no.
Q: What does that mean?
A: It means that he believed they were included in the statement and
that they were not included in the statement.
Q: But isn't that irrational?
A: Lincoln was irrational on the subject of race.
Q: To take the first part first then, what did he mean when he said they
were included in the statement all men are created equal.
A: He meant that Black men had a "humble share" in the words of the Declaration.
Q: That sounds sinister and racist. Did White men also have a "humble share" in
the words of Declaration?
A: No. They had a full share, as White men, as subjects, in the actuality of
the Declaration.
Q: That is sinister. Why do almost all modern Lincoln interpreters praise Lincoln
for saying that Black men had a share, "humble though it may be," in the Declaration?
A: They are either irrational on the subject of race or they haven't read the documents.
Q. What did Whites have to do to be included in the Declaration?
A: The only thing they had to do was to be born White or to migrate to America
from Europe or some other White land.
Q: From a White land?
A: Yes. Land had a color in Lincoln's cosmology. So did blood. Lincoln explained
in great detail in his much-praised Chicago speech that the fully human Whites became
eligible for the host of the Declaration as soon as they arrived from Europe (he later
added the "White" land of Russia). They were not limited to the Lincoln right of putting
bread into their mouths, if they could find any. Because they were White, they could,
unlike the subhuman Blacks, vote, sit on juries, etc. Because they were White, they
found, when they arrived in America, that they, by some strange alchemy, had "a right"
to claim the Declaration "as though they were blood of the blood, and flesh of the flesh,
of the men who wrote that Declaration, and so they are."
Q: Did colored men from Africa and Asia become "blood of the blood, and flesh of
the flesh" as soon as they got off the boat?
A: Of course not. Neither Lincoln nor Clay nor Jefferson said one word about the
rights of immigrants from Africa or even Asia, and Lincoln specifically excluded
"the mongrels" of Mexico.
Q: Does this mean that there were separate sections in Lincoln's Declaration
of Independence?
A: Yes. Lincoln created separate-but-unequal sections in his Declaration.
Q: What rights if any were specified in the "colored" section of Lincoln's
Declaration?
A: Lincoln said colored people were entitled to the "natural" rights enumerated
in the document, the right, he said, to life, liberty and the pursuit of happiness.
Q: Did Lincoln believe that?
A: No. Pressed by critics, he could only think of one "colored right," the right
to put bread in their mouth.
Q. Did Lincoln believe Blacks had a right to earn bread and put it into their mouths
in Illinois, which barred Black immigration, or in the slave states, where it was a crime for
Blacks to appropriate the fruits of their labor?
A: No.
Q: Did he believe Blacks were entitled to life, liberty and the pursuit of happiness
in the slave states?
A: No.
Q: Did he believe Blacks were entitled to life, liberty and the pursuit of happiness
in Illinois, which barred Black immigration and denied Blacks the right to vote and
testify in court?
A: No.
Q: How did he reconcile these contradictions?
A: He said there were two Declarations, an abstract Declaration containing
abstract principles which should be kept in mind, and a real Declaration which
could not be practically enforced in existing states because of racism, custom,
and constitutional commitments.
Q: Did Lincoln believe the Declaration stated a principle that White men were
bound to observe in their social and political relations with nonWhite people?
A: No.
Q: Did Lincoln believe the Declaration stated a principle that he was bound
to observe in his relations with African-Americans, Hispanic Americans, or
Native Americans?
A: No.
Q: Did Lincoln believe the Declaration required him, or any other White man, to do
anything about Jim Crow legislation in Illinois and other states?
A: No.
Q: Did Lincoln believe the Declaration required him or any other White to do anything
about slavery in the states where it existed?
A: No.
Q: What did Lincoln believe the Declaration required him to do except talk?
A: He believed it required him to support verbally and politically the enslavement of the
four million Blacks in the South and to oppose verbally and politically the extension of
slavery to the West.
Q: Did Lincoln believe all men were created equal?
A: No. He believed Whites were created more equal than Blacks who were, he said,
inferior to Whites "in many respects."
Q: Lincoln said at Gettysburg that America was conceived in liberty and dedicated
to the proposition that all men were created equal. Did he believe that?
A: No.
Q: Did he believe Thomas Jefferson and George Washington believed it?
A: No.
Q. All scholars praise Lincoln for saying at Independence Hall that he "never had
a feeling politically that did not spring from the sentiments embodied in the Declaration
of Independence." Who's right, Lincoln or the scholars?
A. None of the above, as we can see clearly if we ask Lincoln, and the scholars,
a few simple questions:

When Lincoln voted on January 5,1836, in his twenty-sixth year, to keep the Illinois
franchise pure from contamination by Black voters, did that feeling spring from the
Declaration of Independence?
When Lincoln said at Peoria, in his forty-fifth year, that he believed America was
made for White people, and not Negroes, did that feeling spring from the Declaration
of Independence?
When Lincoln said at Charleston, in his forty-ninth year, that he was opposed to
Negroes voting and holding office, did that feeling spring from the Declaration of
Independence?
When Lincoln said on the last day of his life, in his fifty-sixth year, that he supported
a Louisiana government that barred Black voters, including Black Union veterans,
did that feeling spring from the words "all men are created equal?"

Q. Why hasn't anyone asked Lincoln these questions before?
A. That's a good question.

[Non-Seq #2054] The court was not investigating if their power had been suspended, they were ruling if they had the power to issue the writ in the first place.

Heck, let's use the actual words of the Court and let's not paraphrase.

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.

The preliminary question is whether the Court had the power to issue "a" writ, i.e., any power to issue such a writ at all.

The Court answered that question in the affirmative.

The 14th section of the judicial act (Laws U. S. vol. 1. p. 58.) has been considered as containing a substantive grant of this power.

The Court then addressed to whom the substantive grant of power was given:

Whatever motives might induce the legislature to withhold from the supreme court the power to award the great writ of habeas corpus, there could be none which would induce them to withhold it from every court in the United States; and as it is granted to all in the same sentence and by the same words, the sound construction would seem to be, that the first sentence vests this power in all the courts of the United States; but as those courts are not always in session, the second sentence vests it in every justice or judge of the United States.

The court then noted the suspension clause of the Constitution.

It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.'

Having answered the general question of whether the court had the authority to issue "a" writ, it now proceeded to the more specific question of whether it could issue "the" writ requested in this case.

If, by the sound construction of the act of congress, the power to award writs of habeas corpus in order to examine into the cause of commitment is given to this court, it remains to inquire whether this be a case in which the writ ought to be granted.

And the Court proceeded to ask another question.

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.

The Court answered that question as follows:

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. Until the legislative will be expressed, this court can only see its duty, and must obey the laws.

Having decided, on that stated basis, that the granting of the writ was an act compatible with the Constitution, the Court held:

The motion, therefore, must be granted.

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