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

12/29/2002 | myself

[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.