Habeas Corpus Suspension Act2

10 Key excerpts on "Habeas Corpus Suspension Act2"

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  The Power of Habeas Corpus in America

  From the King's Prerogative to the War on Terror

  • Anthony Gregory(Author)
  • 2013(Publication Date)
  • Cambridge University Press

    (Publisher)

  51 Before Lincoln’s suspension, most believed that the power lay exclusively with Congress. Now, suddenly, some in Congress questioned whether they had any authority on the matter at all. Congressmen openly debated the possibility that Lincoln had violated the law. The House passed a bill in December 1862 to indemnify the president for suspending habeas, but it failed in the Senate. 52 After more abortive attempts at a joint resolution, Congress finally decided to indemnify Lincoln for any illegal sus- pension that may have happened – the same kind of blanket immunity traditionally given after a suspension in Britain – and on March 3, 1863, Congress passed the Habeas Corpus Suspension Act, establishing [t]hat, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any part thereof. 53 Some in Congress saw the Act as merely a declaration that everything Lincoln had done was legal. Lincoln had, between his inauguration and the passing of the Suspension Act in Congress, unilaterally suspended habeas corpus eight times, 54 although some of these orders were redundant in light of previous suspensions. In fact, the Act gave Lincoln more power than he had sought. 55 It “authorized [the president] to suspend the privilege of the writ of habeas corpus in any case 50 Louis Fisher, Military Tribunals, 52–5. 51 Halbert, 112. 52 Sellery, 56–8. 53 Louis Fisher, Military Tribunals, 44–5; Sidney Fisher, 484. 54 Mian, American Habeas Corpus, 124. 55 Halbert, 113. 102 The Power of Habeas Corpus in America throughout the United States.” 56 It shielded military officials from having to issue returns to habeas corpus writs. It directed district courts to accept the president’s civil and criminal authority as though Congress itself had backed his decisions.

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  Justice in Blue and Gray

  A Legal History of the Civil War

  • Stephen C. Neff(Author)
  • 2010(Publication Date)
  • Harvard University Press

    (Publisher)

  This suffices to ensure that the role of the executive is merely to implement the policy set by Congress, and not to substitute the executive’s own will for that of the legislature. 47 Lincoln made use of the authority conferred by the 1863 act in later habeas corpus suspensions. This occurred most notably in September 1863 , in the face of a crisis brought about by a rash of habeas corpus writs which threat-ened seriously to undermine the Union’s conscription process (which will be considered presently). The chief problem was posed by judges who issued habeas corpus writs for the release of conscripts after their induction. Some lawyers even developed something of a specialization in this area—most famously (or notoriously) a New York lawyer named William F. Howe, who became popularly known as “Habeas Corpus Howe” for his ability to obtain releases of persons from military service. Navy Secretary Gideon Welles grumbled that sailings of warships were sometimes delayed by judges issuing habeas corpus writs on behalf of seamen. 48 These habeas corpus ac-tions were especially numerous, and disruptive to the conscription process, in Pennsylvania. 49 Lincoln reacted by invoking the Habeas Corpus Act, to deny the benefit of the writ to persons enrolled in the armed forces, as well as to persons who had committed any offenses against the armed forces. 50 The following year, he in-voked the act again, to suspend habeas corpus in Kentucky, in the context of a proclamation of martial law in the state, in the face of an impending Con-federate invasion. 51 By means of this combination of executive and legislation action, the Union government succeeded in closing off habeas corpus actions in the fed-eral courts as an effective avenue of opposition to the war policies of the Lin-coln administration. Other legal pathways, however, remained to be explored by intrepid dissenters, including habeas corpus relief from state courts, which were not covered by the federal suspensions.

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  Habeas Corpus in International Law

  • Brian R. Farrell(Author)
  • 2016(Publication Date)
  • Cambridge University Press

    (Publisher)

  In the years following enact- ment of the Act, both the courts 100 and the House of Commons itself 101 confirmed that committals by Parliament were not subject to inquiry via habeas corpus. David Clark and Gerard McCoy also point out that Parliament granted the monarch wider legal powers of arrest at the same time that it attempted to strengthen habeas corpus. 102 Additional legislative action tended to restrict, rather than strengthen, habeas corpus. 103 As Vladeck writes, “the short version is that the more Parliament intervened, the weaker the writ became.” 104 1.2 a right of universal importance By the end of the seventeenth century, habeas corpus was a fundamental part of English law, largely as a result of judicial innovation. Had habeas corpus remained unique to English law, however, its impact would likely have been limited, and it may not have become a fixture of international law. The proliferation of the English habeas corpus model and the independent development of other remedies in the nature of habeas corpus ensured that it would be considered a truly universal right by the end of the World War II. 95 Halliday and White, “Suspension Clause,” 611. 96 Halliday, England to Empire, p. 242. 97 Halliday and White, “Suspension Clause,” 611. 98 Vladeck, “Habeas Revisionism,” 951. 99 The Act allowed judges absolute discretion in setting bail. Ibid. § 2. This discretion was later limited by the Bill of Rights of 1688 which provided “that excessive bail ought not be required.” Bill of Rights, 1 W. & M. c. 2, § 1 (1688). 100 Danby’s Case, 11 St. Tr. 831 (K.B. 1682); Regina v. Paty, 91 Eng. Rep. 431 (K.B. 1704). 101 Grey Anchitell, Debates of the House of Commons (1769), vol. 8, pp. 220–22, http://www.british- history.ac.uk/source.asp?pubid=267. 102 Clark and McCoy, Most Fundamental Legal Right, p.

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  Abraham Lincoln and Treason in the Civil War

  The Trials of John Merryman

  • Jonathan W. White(Author)
  • 2011(Publication Date)
  • LSU Press

    (Publisher)

  THE GOVERNMENT MUST IN SOME WAY SUSTAIN YOU IN YOUR OFFICIAL ACTS ” The Habeas Corpus Act, Part II: The Failure of Congress to Protect Those Waging War

  T he military arrest and trial of civilians was only one part of the habeas corpus problem that arose during the Civil War. Prior to the passage of the Habeas Corpus Act in March 1863, military officers and government officials who participated in the arrest of civilians were vulnerable to civil prosecution in civil courts for their actions in defense of the Union. These lawsuits struck fear in the hearts of Union commanders. Indeed, one Pennsylvania Supreme Court justice believed that “[i]ndemnity for the past is necessary to prevent many innocent men from being harassed and ruined.”1 Moreover, such suits allowed disloyal Americans to use the state and federal judiciaries to undermine the Union war effort. High Union officials understood the damage that these suits could cause. As a consequence, they pressed Congress to pass indemnifying legislation.2 The result, however, was disappointing. The Habeas Corpus Act, or Indemnity Act, of 1863 did little to protect Union officials, and damages suits continued to plague Union authorities during the second half of the war. So threatening were suits of this nature, and so weak was the protection offered by Congress, that Union leaders were forced to take drastic measures to protect themselves against their “disloyal” adversaries. One powerful figure, for example, recommended re-arresting Maryland civilians who were suing him for wrongful arrest so that they could no longer prosecute their suits against him. In the absence of adequate congressional protection, those waging war on behalf of the Union had to devise their own methods for saving themselves from disloyal civilians within the loyal states.

  Suspected traitors in the North began filing lawsuits against Union officials very early in the war. Baltimore police commissioner Charles Howard, for example, sued a military officer in August 1861 for illegal search and seizure. Other Baltimoreans sued General John E. Wool for damages from the time they were held in his custody at Fortress Monroe.3 In April 1862, Philadelphia resident Pierce Butler sued former Secretary of War Simon Cameron for trespass, assault and battery, and false imprisonment. The matter, which originated in the Pennsylvania state court system, never went to trial, but Cameron was not taking any chances. Cameron sent word of the suit to the president. He also wrote to General George Cadwalader asking him to “disabus[e] the mind of your brother of prejudices against me.” General Cadwalader’s brother, John, was the U.S. district judge in Philadelphia. The general responded that the “Govt. must in some way sustain” Union authorities in their “Official acts.” “I am myself vulnerable and liable to be harassed by Merryman & others in Baltimore,” he continued. “I will no doubt be arrested the next time I go to Maryland which I should regret at this moment.” Cadwalader’s fears were not overstated. Indeed, Philadelphia lawyer Benjamin H. Brewster noted that Cadwalader “dreads the Merriman case.”4

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  The Body and the State

  Habeas Corpus and American Jurisprudence

  • Cary Federman(Author)
  • 2012(Publication Date)
  • SUNY Press

    (Publisher)

  Rights declared in words might be lost in reality. —Weems v. United States T HE FIRST SIGNIFICANT era of habeas corpus in American political history extends from the passage of the Habeas Corpus Act in 1867 through 1915, when the Supreme Court denied a writ of habeas corpus to Leo Frank, in the celebrated murder case, Frank v. Magnum. 1 This chapter reviews this first period of the Supreme Court’s habeas corpus jurisprudence with a brief look at the writ in the antebellum period. Habeas corpus in the antebellum period is distinctive (when compared with its postwar history) in terms of its con- gressionally led expansion across federal-state jurisdictional lines. The use of federal habeas corpus and removal statutes to interfere with state laws regard- ing arrest before and during the Civil War mirrors more closely the writ’s English past than its American future. Sectional differences and party divisions over the extent of federal power were facts of political life in the antebellum period that, in part, highlighted the federal government’s incapacity to reach state action. 2 One notable but over- looked example of pre-Civil War sectional stress and party division took the form of state arrests of federal military and revenue personnel during wartime and the crisis over tariff collection. 3 State-sanctioned arrests of federal officers (first in the North, then in the South) capitalized on the inability of state arrestees to appeal directly to the federal courts for relief from unjust confinement. 21 ONE Habeas Corpus in the New American State, 1789–1915 During the war of 1812, Massachusetts arrested U.S. custom officers to prevent the federal government from collecting taxes over a war it did not sup- port.

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  Power Play

  The Bush Presidency and the Constitution

  • James P. Pfiffner(Author)
  • 2009(Publication Date)
  • Brookings Institution Press

    (Publisher)

  . . . We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. . . . Unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judi-cial Branch to play a necessary role in maintaining this delicate bal-ance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions.” 68 After determining that Hamdi had the right to argue his case before an independent judge, the case was remanded to the court of appeals for further proceedings. In a strongly worded dissent, Justice Scalia, one of the most conserva-tive justices who often sided with the executive, argued that the majority the power to imprison 103 did not go far enough in protecting habeas corpus and its role in assur-ing individual liberty (quoted earlier in the chapter). Joined by Justice Stevens, Scalia began his argument by asserting that habeas corpus has been fundamental to Anglo-American jurisprudence. “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.” He went on to argue that due process rights “deemed necessary before depriving a person of life, liberty, or property . . . have historically been vindicated by the writ of habeas corpus. In England before the founding, the writ developed into a tool for challenging executive confinement.” In this case, Scalia saw a clear challenge to what he took as one of the fundamental rights protected by the Constitution.

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  Civil Liberties and the State

  A Documentary and Reference Guide

  • Christopher Peter Latimer(Author)
  • 2010(Publication Date)
  • Greenwood

    (Publisher)

  However, the effect of Hamdan was short-lived because Presi- dent Bush approached Congress for a new law which led to the passage of the Military Commissions Act (MCA). The MCA amended the habeas corpus statute (28 U.S.C. § 2241(e)(1)) to deny federal courts jurisdiction in actions designed to secure habeas corpus rights for detained aliens adjudged by the CSRT to be enemy combatants. Chapter 6 • 21st-Century Court Rulings 311 When the case was appealed to the D.C. Circuit for the second time, Boumediene argued that the MCA did not apply to his petition, and that if it did, it was uncon- stitutional under the suspension clause. The suspension clause reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebel- lion or Invasion the public Safety may require it.” The D.C. Circuit agreed with the government and upheld the MCA ruling that the suspension clause only protects the writ of habeas corpus as it existed in 1789, and that the writ would not have been understood in 1789 to apply to an overseas military naval base leased from a foreign government. The D.C. Circuit therefore did not consider whether the DTA pro- vided an adequate and effective substitute for habeas. The D.C. Circuit concluded that constitutional rights do not apply to aliens outside of the United States and the leased military base in Cuba does not qualify as inside the geographic borders of the United States. Boumediene appealed this decision to the Supreme Court which granted certiorari after initially denying review of the case three months earlier. The Supreme Court held that Congress’s passage of the MCA denied federal courts jurisdiction to hear habeas corpus actions. Habeas corpus related to any aspect of the detention, trans- fer, treatment, trial, or conditions of confinement of an alien who was detained as an enemy combatant by the CSRTs.

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  The Body of John Merryman

  Abraham Lincoln and the Suspension of Habeas Corpus

  • Brian McGinty(Author)
  • 2011(Publication Date)
  • Harvard University Press

    (Publisher)

  3 4 THE WRIT AND THE SUSPENSION The Writ and the Suspension 73 It did not take long for the two attorneys to listen to Merry-man’s story and determine that they should prepare a petition for a writ of habeas corpus in his behalf. The writ of habeas corpus was in 1861, as it is now, a bulwark of the Anglo-American legal system. As developed in the common law of England, it was a special judicial proceeding that enabled a person deprived of his or her liberty to obtain a prompt judicial determination as to the legality of the deprivation. It protected innocent persons against arbitrary and illegal detention and thus constituted a formidable barrier against abuse of governmental power. After a petition for a writ of habeas corpus was fi led, the court issued a writ (or order) commanding the custodian of the detained person to “have the body” (habeas corpus) of the detained person in court, where the reasons for the detention could be examined. If the custodian could not justify the detention, the person was entitled to be set at liberty. Reflecting the centuries-old respect, almost reverence, in which it was held by lawyers and judges, the writ of habeas corpus had been regarded in England, in the British colo-nies of North America, and in the United States as the Great Writ of Liberty. 4 As prepared by Williams and Gill, Merryman’s petition was directed to “the Honorable Roger B. Taney, Chief Justice of the Supreme Court of the United States and Judge of the Circuit Court of the United States in and for the District of Maryland” (this language would later be altered, as explained below).

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  Making Habeas Work

  A Legal History

  • Eric M. Freedman(Author)
  • 2018(Publication Date)
  • NYU Press

    (Publisher)

  16

  After presenting an historical account of habeas steeped in the “duty and authority of the Judiciary to call the jailer to account,”17 Boumediene determined that “the judicial authority to consider petitions for habeas corpus relief” derives from principles “of separation of powers.”18 (Of course, as the context makes clear, the Court is here using the phrase “separation of powers” in the sense that I assigned in chapter 11 above to “checks and balances.”)

  The judiciary has the habeas power of inquiry and remedy19 (including ordering release)20 needed to effectively play its role in policing the other branches.21 As Boumediene makes clear, this is true regardless of whether Congress has (1) passed a statute restricting the power (the actual situation in Boumediene), or (2) failed to pass one granting the power (the hypothetical posed by Bollman).

  1. (1) The issue actually before the Court arose under the Suspension Clause, a restriction on congressional authority to pass a statute like the MCA. That is why the Court explicitly grounded its holding invalidating the act in the Suspension Clause.22
  2. (2) But the broader proposition—the modern dicta supporting an inherent judicial habeas power which destroyed the older dicta rejecting it—does not originate in the Suspension Clause, which is a limit on the powers of Congress. That proposition rests on Article III, which affirmatively declares, “The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”23

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  Habeas Corpus

  From England to Empire

  • Paul D. Halliday(Author)
  • 2010(Publication Date)
  • Belknap Press

    (Publisher)

  128 A single ostensible soldier, Thomas Reynolds, would be released by habeas corpus in the 1740s. 129 But doubts per-sisted about the propriety of using the writ this way, especially since or-dering the discharge of soldiers might not indemnify them from pun-ishment for desertion. This explains the more common practice of King’s Bench in the 1750s of releasing wrongly conscripted soldiers by making rules for discharge, though habeas corpus would continue to be used on occasion in the decades ahead for the same purpose. 130 Habeas corpus, as an instrument by which complex settlements were negotiated, would remain useful in a situation like John Parkin’s. Parkin may initially have signed up with an artillery regiment to avoid finishing his apprenticeship to a Sheffield cutler in 1757. When his master complained to his company’s commanders, Parkin was restored to the cutler’s service on the understanding that he would return to his regiment when his apprenticeship concluded that December. When the time came, however, life as a journeyman cutler apparently began to look better to Parkin, so he remained at his forge in Sheffield until he was seized by members of his regiment as a deserter and put in Making Jurisdiction • 167 the house of correction at Wakefield. Parkin’s master now sued habeas corpus, and he was soon discharged. 131 In the same way that King’s Bench supervised custody of felonious soldiers, deserters, and impressed sailors, it also inspected the custody of “prisoners at war.” To understand how, we must first examine ideas and practices concerning POWs. Throughout the seventeenth cen-tury, there was little in the way of doctrine about how, in law, to think about or handle such prisoners. This is not terribly surprising, for two reasons. First, when prisoners were taken during war, no one intended that they should be held very long.

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