Posted on 12/11/2002 3:15:37 AM PST by WhiskeyPapa
"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." - Thomas Jefferson, autobiography, 1821.
"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." - Proposal by Mr. Pickney, August 20.
The proposal, along with several others, was referred to committee for consideration without debate. It emerged in its proposed form eight days later when Gouverner Morris motioned to include the text "The privilege of the writ of Habeas Corpus shall not be suspended; unless where in cases of rebellion or invasion the public safety may require it."
The record again clearly indicates that the power of Article 1, Section 9 pertaining to habeas corpus was of the legislature.
The same is recognized in the debate papers during ratification where references to the clause identify it as a legislative power. Take the following excerpt from the anti-federalist papers:
"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." - "Brutus" (Robert Yates) Number 9, The Anti-Federalist Papers
Also in the ratification debate, delegates to the Massachussetts ratification convention clearly identified the suspension power as one of the legislature. The following excerpt is from its record of debates on January 26, 1788. As one delegate observed:
"Supposing it had been, as in our constitution, "not exceeding twelve months," yet, as our legislature can, so might the Congress, continue the suspension of the writ [of Habeas Corpus] from time to time, or from year to year. The safest and best restriction, therefore, arises from the nature of the cases in which Congress are authorized to exercise that power at all, namely, in those of rebellion or invasion."
Another delegate argued that "Congress have only power to suspend the privilege to persons committed by their authority," again clearly recognizing the suspension power was with the legislature.
Thomas Jefferson clearly saw it as a legislative power as well, writing so in his autobiography:
"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." - Thomas Jefferson, autobiography, 1821.
Considering the volume of evidence for this view among the founding fathers and other participants in the Constitution's framing, it of little surprise that Marshall ruled the way he did in Ex Parte Bollman and Swartwout in 1807:
"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." - John Marshall, Ex Parte Bollman and Swartwout (1807)
The same view appears in the two most prominent legal commentaries on the Constitution from the early 19th century. William Rawle, in his "A View of the Constitution of the United States," defines the suspension power as legislative:
"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"
Echoing this position, Justice Joseph Story makes it clear that suspension is a legislative right alone in his "Commentaries on the Constitution," perhaps the most celebrated early text on the document: "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."
That pretty much covers it, Walt - a comprehensive list of historical documents and figures from the time of the Constitution's drafting and the decades immediately after, ALL of whom clearly recognize that the Constitution specifically gives the suspension power for habeas corpus to the legislature. To date you've only provided two sources who assert otherwise by claiming the executive has the power:
1. Abe Lincoln, who claimed it as his own (1861)
2. William Rehnquist, at a speech to a law school (modern times)
Now Walt, compare that against my list of sources that say it's a legislative power:
1. Madison's records of the Constitutional Convention (1787)
2. The Massachussetts ratification debate records (1788)
3. The Anti-Federalist Papers (1789)
4. John Marshall, in Ex Parte Bollman & Swartwout (1807)
5. Thomas Jefferson, in his autobiography (1821)
6. William Rawle, in "A View of the Constitution" (1826)
7. Joseph Story, in "Commentaries on the Constitution" (1833)
8. Roger Taney, in Ex Parte Merryman (1861)
Now tell me, Walt. Exactly where did Lincoln come up with that nonsense about a presidential power to suspend habeas corpus, and how in the world can you defend it considering it directly contradicts the overwhelming ammount of historical evidence from the U.S. Constitution's drafting, ratification, and implementation before it?
The Constitution nowhere says what the president may do in regards to the Writ. It only says what Congress may or may not do.
As I have suggested before, the perception of the powers of the three branches was different in 1861 than it is now. The power of the Supreme Court extended only to - particular cases-. Had the issue come before the Supreme Court in the form of a -case-, which it never did, and Lincoln ignore -that- then you might have a beef with Lincoln.
You are making an historical judgment on an historical person.
I think we can pretty much say that the current Chief Justice is familiar with all your data and he said (as you know):
"Lincoln, with his usual incisiveness, put his finger on the debate that inevitably surrounds issues of civil liberties in wartime. If the country itself is in mortal danger, must we enforce every provision safeguarding individual liberties even though to do so will endanger the very government which is created by the Constitution? The question of whether only Congress may suspend it has never been authoritatively answered to this day, but the Lincoln administration proceeded to arrest and detain persons suspected of disloyal activities, including the mayor of Baltimore and the chief of police."
-- Chief Justice William Rhnhquist, November 17, 1999.
Walt
Provocation of the fall of Sumter, Shenandoah Valley, Camp Chase, Atlanta, New Orleans, Columbia, Charleston.... Hand of forgiveness and conciliation. Right. Sure. Pull the other leg, Walt, it plays Jingle Bells.
All through 1862 President LIncoln suggested compensated emancipation if the rebel states would agree to acknowledge the national authority. Late in 1862 he determined on an emancipation proclamation. Even that- had a provision for slave holders to keep their slaves if, within 100 days the national authority was acknowledged.
In February 1865, President Lincoln suggested that $400,000,000 in bonds be made available to the rebel states if they would acknowledge the national authority.
President Lincoln always held out the hand of concilation and forgiveness to the rebels. The record is plain on that.
Walt
Hello? Shelling population centers ring a bell?
"Lincoln," Henry Grady said, "comprehended within himself all the strength, and gentleness, all the majesty and grace of the republic." He was indeed, the first American, "the sum of Puritan and Cavalier, in whose ardent nature were fused the virtues of both, and in whose great soul the faults of both were lost."
Although President Lincoln clearly held out the hand of forgiveness and reconciliation to the rebels, he was not willing to leave the game with "any card unplayed."
The rebels took the lead in atrocity and immorality. They reaped what they sowed.
Consider this from Jim Epperson's website:
12/24/62: Jefferson Davis issues a proclamation which states (1) White officers of black troops will not be treated as POWs; (2) The black troops themselves will not be treated as POWs; (3) Union Maj. Gen. Benjamin Butler is to be hanged w/o trial immediately upon being captured; (4) No Union officers will be paroled until Butler is caught and hanged. All four of these provisions were violations of the Dix-Hill Cartel.
12/28/62: In response to Davis's proclamation, the Federals end the exchange and parole of Confederate officers.
5/25/63: Non-exchange and parole of Confederate officers is re-affirmed in orders from Halleck to all commanders in the field. This is done largely in respone to the CS Congress passing a law implementing a small variation of Davis's 12/24/62 proclamation.
7/13/63: Secretary of War Stanton orders an end to the exchange and parole of enlisted men. This is done largely because of increasing arguments over the parole provisions of the cartel, and the feeling that this aspect of the agreement is (unfairly) being manipulated by the Confederates to their advantage.
Fall, 1863: Confederates return to service most of the Vicksburg garrison, an act which the Federals claim is not justified by the cartel. This hardens Federal attitudes towards the exchange process. So, as of 1/1/64, the exchange cartel is more or less entirely disrupted, as a result of reasonable objections being made by the Federals...
4/17/64: Lt. Gen. US Grant issues orders that exchanges remain halted until the Confederates compensate the Yankees for the release of the Vicksburg garrison, *and* agree to treat black soldiers equally with white. Grant's role was to confirm a policy already in place, a policy reached as a result of difficulties in managing the cartel. Grant's views on exchange are well-known: He thought it was a bad idea. There's a quote from him to the effect that re-opening exchange might be humanity towards the men in the camps, but keeping it closed was humanity towards the men in the ranks. That's a harsh judgement, but it is no less accurate for being harsh."
http://members.aol.com/jfepperson/causes.html
It was the so-called CSA that brought war in the raw down on their own heads by their cruelty and immorality.
Walt
And the same to you. :)
Walt
Sorry, Walt, it was Lincoln who showed his true colors in May of 1861 no matter how much of someone elses biased analysis you may hold up as a rebuttal.
What did President Lincoln do in May, 1861 that you find offensive?
Walt
Butler was picked, and remained in positions of authority because he was a major player in the Democratic Party.
After Lincoln was re-elected, Butler was sent packing.
Walt
Sure it does - nothing. Since the writ itself is enumerated specifically to the legislature's domain, logic dictates that it cannot be implicit to the executive's power. As I have evidenced thoroughly, practically every founding father and early constitutional scholar to weigh in on this subject agrees with me on this. All you've got is Abe Lincoln, the culprit himself, and Bill Rehnquist. Your sources simply do not compare to mine. Therefore you lose.
As I have suggested before, the perception of the powers of the three branches was different in 1861 than it is now.
Irrelevant. The evidence conclusively demonstrates that the reading of the constitution under its original intent by the men who framed it sought the suspension power to be the domain of the legislature. The Lincoln had no credible reason to act as he did.
The power of the Supreme Court extended only to - particular cases-.
Marbury termed it as the following: "The judicial power of the United States is extended to all cases arising under the constitution." That being noted, there was a particular case in 1861 called Ex Parte Merryman. The Lincoln ignored it because he didn't like the outcome.
Had the issue come before the Supreme Court in the form of a -case-, which it never did
It never came before the Supreme Court because The Lincoln refused to appeal it there even though it was his burden to do so. Try again.
and Lincoln ignore -that- then you might have a beef with Lincoln.
So in other words, you are saying he's free to ignore a circuit court ruling but not a supreme court ruling?
You are making an historical judgment on an historical person.
Yup, and I'm doing so by providing overwhelming historical evidence that the act of that historical person was unconstitutional.
I think we can pretty much say that the current Chief Justice is familiar with all your data and he said (as you know):
It's unfortunate if the guy is wrong, but that's just the way things go some times. He can call the issue unsettled all he wants, but that will never change the fact that the constitutional convention's records indicate the power was legislative, not executive.
Needless to say, my list including Taney, Marshall, Jefferson, Rawls, Story, the ratification debates, and Madison's notes from the constitutional convention still outweighs your list containing the crime's perpetrator and Rehnquist. But by all means try again, Walt. I enjoy watching you make an idiot of yourself.
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