A Historical Survey Of Habeas Corpus 1787-1861

Kelly

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285
#1
From the constitutional convention of 1787, right up until Lincoln’s lawless political-military junta of 1861 amended the constitution at the point of a bayonet, suspending the writ of habeas corpus was, irrefutably and emphatically, the unique and exclusive responsibility of the legislature. In fact, not so much as a single convention delegate, not one, not ever, advocated giving the right of suspension to the president. To the contrary, when suspension was discussed, it was discussed as the qualified, restricted, limited, and exclusive prerogative of the legislature. Here, for example, is how the right of suspension appeared as of Monday, August 20, 1787, in draft form:

“…and shall not be suspended by the Legislature except upon the most urgent and pressing occasions…”

Nor is that all. One can scrutinize the entirety of The Federalist, including the series of papers specifically examining the presidency, and one will find not even the slightest or most remote reference to giving the power of suspension to the president. The power is not mentioned in Federalist 67, and it is not mentioned in Federalist 68. Nor is it mentioned in Federalist 69, nor in 70, nor in 71. Nor in 72, nor in 73, nor in 74, nor in 75, nor in 76 nor in 77. Nowhere, nowhere, do the framers even hint at the idea of giving the power to suspend habeas corpus to the president. Absolutely nowhere.

Conversely however, one will most certainly find that Hamilton did indeed discuss habeas corpus in Federalist 84, where he directly quotes, favorably references, and effusively praises William Blackstone’s interpretation of the right to suspend habeas. The great and learned Blackstone, of course, flatly rejected the idea that the executive, even the British King in all his vast power, could lawfully exercise the crucial right of suspension:

“. But the happiness of our constitution is, that it is not left to the executive power to determine when the danger of the state is so great as to render this measure expedient; for it is the parliament only, or legislative power, that, whenever it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited time”

Thus far in the early history of habeas corpus and the country, it is clear and undeniable that the president is not empowered to suspend the right of habeas corpus. In fact, at this stage the very idea is complete anathema. And this makes perfect sense, because when we look to the enumerated powers of the president in Article II, section 2, we find not so much as a single sentence, nay, not so much as a single word, which gives the power to suspend Habeas Corpus to the president. Accordingly, Chief Justice Roger Taney, acting in his capacity as a Circuit Court Judge for Maryland, wrote in Ex Parte Merryman:

“…It is the second article of the constitution that provides for the organization of the executive department, enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizen now claimed, was intended to be conferred on the president, it would undoubtedly be found in plain words in this article; but there is not a word in it that can furnish the slightest ground to justify the exercise of the power.

So what, exactly, did the early constitutional scholars have to say on the subject? Here is the renowned constitutional scholar and Virginia Supreme Court Judge St. George Tucker:

In England the benefit of this important writ can only be suspended by authority of ParliamentIn the United States, it can only be suspended, only, by the authority of Congress

And he is far from alone in this opinion. William Rawle, a constitutional scholar of such prestige and impeccable credentials that his textbook on constitutional law was required reading at Harvard Law School, said this:

“ 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,”

Nor is that all. The esteemed and celebrated constitutional scholar and Supreme Court Judge Joseph Story also contemplated the power to suspend habeas corpus in his magisterial treatise on the Constitution. Story, a strong, dedicated, firm, and unapologetic nationalist, said this:

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 the exigency had arisen must exclusively belong to that body."

Nor is that all. In 1807, writing for the Supreme Court in the case of Ex Parte Bollman and Swartwout, Chief Justice John Marshall wrote:

"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."

Thus far in our historical survey we have seen how all the Founding Fathers, and erudite, brilliant, and learned constitutional scholars, as well as highly esteemed and accomplished jurists all, all contemptuously reject the fatuous and dangerous idea the president, under the United States Constitution, is empowered to suspend habeas corpus. This, undoubtedly, is what prompted constitutional scholar Saikrishna Bangalore Prakash, in a 2103 edition of the Virginia Law Review, to write:

“A number of other commentators agreed that only Congress could suspend, including Professor Francis Lieber, author of the “Lieber Code”. Writing in 1859, he declared, matter-of-factly, it “need hardly be mentioned” that the President could not suspend.”

So as of 1859, a mere two years before Lincoln’s military junta amended the constitution at the end of a barrel of a gun, there was no doubt, none whatsoever, that the authority to suspend habeas corpus rested uniquely and exclusively with the Congress. Said Chief Justice Roger Taney:

And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands, that the privilege of the writ could not be suspended, except by act of congress”

The Chief Justice was, and is, correct. Before Lincoln’s gunmen took over and amended Article I, section 9, clause 2 through violence and intimidation, there is absolutely no credible source, none whatsoever, who argued that the president had the power to suspend habeas corpus. The very idea is repugnant to individual liberty under a democratic republic.
 
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unionblue

Brev. Brig. Gen'l
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#4
To All,

Some books that might be of interest on this thread's topic.

Lincoln's Constitution, by Daniel Farber.

Lincoln & The Court, by Brian McGinty.

Lincoln And Chief Justice Taney, by James F. Simon.

Perilous Times: Free Speech in Wartime, by Geoffrey R. Stone.

Lincoln's Wrath, by Jeffrey Manber & Neil Dahlstrom.

Lincoln And The Press, by Robert S. Harper.

Southern Rights, by Mark E. Neely, Jr.

America's Constitution, by Akhil Reed Amar.

Sincerely,
Unionblue
 
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Kelly

Corporal
Joined
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Messages
285
#6
So what's the point? Most everyone agrees that Lincoln's action was unconstitutional. The argument is whether or not it was necessary as a measure to preserve the Union.
First things first. I am delighted to see the intellectual honesty that recognizes that Lincoln had no authority to suspend Habeas Corpus. But sadly, the rest of your comment indicates an endorsement of the uncivilized doctrine of "might makes right". I do wish you would rethink that.
 

unionblue

Brev. Brig. Gen'l
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Location
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#7
"The provision of the Constitution that "the privilege of the writ of habeas corpus, shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it," is equivalent to a provision--is a provision--that such privilege may be suspended when in cases of rebellion, or invasion, the public safety does require it. It was decided that we have a case of rebellion, and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made."

Abraham Lincoln in a message to the special session of Congress, July 4, 1861.
 

WJC

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#8
First things first. I am delighted to see the intellectual honesty that recognizes that Lincoln had no authority to suspend Habeas Corpus. But sadly, the rest of your comment indicates an endorsement of the uncivilized doctrine of "might makes right". I do wish you would rethink that.
Thanks for your response.
Where do you see evidence of an endorsement in a straightforward definition of the question?
 
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#9
So what's the point? Most everyone agrees that Lincoln's action was unconstitutional. The argument is whether or not it was necessary as a measure to preserve the Union.
Not so sure about that. No poster has posted a full US Supreme Court decision or a full US Circuit Court decision that states that President Lincoln violated the US Constitution by suspension of habeus corpus. The Wikipedia article on Ex Parte Merrymen cites other US Supreme Court Justices acting in the capacity of Circuit Court judges who agreed with the suspension of habeus corpus. Congress did pass a law in 1863 that limited but did allow President Lincoln under certain circumstances to suspend habeus corpus. I did cite an article in the previous thread on Habeus corpus that discuses' that.
Leftyhunter
 

Kelly

Corporal
Joined
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Messages
285
#15
That's a great source. It's shows very clearly and explicitly that the power to suspend Habeas Corpus is carefully enumerated in Article II, section 2. It's a must read.
 

Kelly

Corporal
Joined
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Messages
285
#16
To All,

Some books that might be of interest on this thread's topic.

Lincoln's Constitution, by Daniel Farber.

Lincoln & The Court, by Brian McGinty.

Lincoln And Chief Justice Taney, by James F. Simon.

Perilous Times: Free Speech in Wartime, by Geoffrey R. Stone.

Lincoln's Wrath, by Jeffrey Manber & Neil Dahlstrom.

Lincoln And The Press, by Robert S. Harper.

Southern Rights, by Mark E. Neely, Jr.

America's Constitution, by Akhil Reed Amar.

Sincerely,
Unionblue


I have to read all those books? Couldn't I just read Article II, section 2, of the U.S. Constitution? That's where the powers of the presidency are enumerated, so that's where the power to suspend Habeas Corpus is. Right?
 

WJC

Brigadier General
Moderator
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#19
Not so sure about that. No poster has posted a full US Supreme Court decision or a full US Circuit Court decision that states that President Lincoln violated the US Constitution by suspension of habeus corpus. The Wikipedia article on Ex Parte Merrymen cites other US Supreme Court Justices acting in the capacity of Circuit Court judges who agreed with the suspension of habeus corpus. Congress did pass a law in 1863 that limited but did allow President Lincoln under certain circumstances to suspend habeus corpus. I did cite an article in the previous thread on Habeus corpus that discuses' that.
Leftyhunter
Thanks for your response.
Taney's written opinion clearly said that the President did not have the authority to suspend the privilege of the writ of habeas corpus and that the Constitution reserved that authority for the Congress.
The most that can be said is that given the circumstances (an ongoing rebellion), Taney refused to test the authority of the Judicial Branch.
To avoid confrontation, Taney was intentionally ambiguous. He was very careful to represent the opinion as given by the Supreme Court even though the Supreme Court did not have jurisdiction. For example, he presented his opinion as Chief Justice of the Supreme Court and initially ordered the opinion filed with the Supreme Court, later changing that order to file with the Circuit Court.
 

WJC

Brigadier General
Moderator
Joined
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10,656
#20
I see it here:

"Most everyone agrees that Lincoln's action was unconstitutional"
Thanks for your response.
Yet in your initial response, you accepted that portion with delight while seemingly objecting to "The argument is whether or not it was necessary as a measure to preserve the Union."
 



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