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To: Non-Sequitur
[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.

2,172 posted on 09/28/2004 4:02:01 AM PDT by nolu chan (What's the frequency?)
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To: nolu chan

Yes, but who had suspended habeas corpus in the first place? Where in the decision does the court note such a suspension? You pointed out that the court determined that the judiciary acts gave the courts the power to issue the writ. The question was then whether the jucidiary acts were Constitutional. The court ruled that they were. Nowhere have you shown where habeas corpus had been suspended. And if it wasn't suspended then how could the court rule on who may suspend it?


2,174 posted on 09/28/2004 4:06:02 AM PDT by Non-Sequitur (Jefferson Davis - the first 'selected, not elected' president.)
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