Historical Trivia Part II

POSTED BY: Fremdfirma
UPDATED: Wednesday, April 25, 2007 14:51
VIEWED: 983
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FREMDFIRMA

Tuesday, April 24, 2007 4:13 PM

Note: This is more of a paraphrase and may not be exact, but is as exact as possible.
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The application in this case for a writ of habeas corpus is made to me under the 14th section of the judiciary act of 1789 [1 Stat. 81], which renders effectual for the citizen the constitutional privilege of the writ of habeas corpus. That act gives to the courts of the United States, as well as to each justice of the supreme court, and to every district judge, power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. The petition was presented to me, at Washington, under the impression that I would order the prisoner to be brought before me there, but as he was confined in Fort McHenry, in the city of Baltimore, which is in my circuit, I resolved to hear it in the latter city, as obedience to the writ, under such circumstances, would not withdraw General Cadwalader, who had him in charge, from the limits of his military command.

The petition presents the following case: The petitioner resides in Maryland, in Baltimore county; while peaceably in his own house, with his family, it was at two o'clock on the morning of the 25th of May 1861, entered by an armed force, professing to act under military orders; he was then compelled to rise from his bed, taken into custody, and conveyed to Fort McHenry, where he is imprisoned by the commanding officer, without warrant from any lawful authority.

The commander of the fort, General George Cadwalader, by whom he is detained in confinement, in his return to the writ, does not deny any of the facts alleged in the petition. He states that the prisoner was arrested by order of General Keim, of Pennsylvania, and conducted as aforesaid to Fort McHenry, by his order, and placed in his (General Cadwalader's) custody, to be there detained by him as a prisoner.

A copy of the warrant or order under which the prisoner was arrested was demanded by his counsel, and refused: and it is not alleged in the return, that any specific act, constituting any offence against the laws of the United States, has been charged against him upon oath, but he appears to have been arrested upon general charges of treason and rebellion, without proof, and without giving the names of the witnesses, or specifying the acts which, in the judgment of the military officer, constituted these crimes. Having the prisoner thus in custody upon these vague and unsupported accusations, he refuses to obey the writ of habeas corpus, upon the ground that he is duly authorized by the president to suspend it.

The case, then, is simply this: a military officer, residing in Pennsylvania, issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears; under this order, his house is entered in the night, he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement; and when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a justice of the supreme court, in order that he may examine into the legality of the imprisonment, the answer of the officer, is that he is authorized by the president to suspend the writ of habeas corpus at his discretion, and in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.
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As the case comes before me, therefore, I understand that the president not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him. No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the president claimed this power, and had exercised it in the manner stated in the return. 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 ther

FREMDFIRMA

Tuesday, April 24, 2007 4:14 PM

In the text itself there are many clues so we'll go with more questions this time.

#1 - What is this about ?

#2 - When did it happen ?

#3 - What was the adminstration response to this text ?

#4 - What was the end result ?

#5 - How is this immediately relevant to our current times ?

Bonus question

#6 - What followup decision after the crisis had passed, decided this issue in no uncertain terms ?

NEWOLDBROWNCOAT

Tuesday, April 24, 2007 5:51 PM

question # 3. I'm thinkin' this caused a Civil War.

FREDGIBLET

Tuesday, April 24, 2007 6:20 PM

Quote:
Originally posted by Fremdfirma:
#1 - What is this about ?

What is illegal suspension of habeus corpus?

Quote:
#2 - When did it happen ?

What is April of 1861?

Quote:
#3 - What was the adminstration response to this text ?

What is, first it was ignored, then worked around through legislation?

Quote:
#4 - What was the end result ?

What is, legislation was passed that made the actions legal?

Quote:
#5 - How is this immediately relevant to our current times ?

What is, the current president is fond of giving himself whatever power he feels he should have regardless of legality?

Quote:
Bonus question

#6 - What followup decision after the crisis had passed, decided this issue in no uncertain terms ?

What is, the Habeus Corpus Act of 1863?

FREMDFIRMA

Wednesday, April 25, 2007 2:51 PM

#1 - What is this about ?

What is illegal suspension of habeus corpus?

Correct, this is Chief Justice Roger B Taneys decision regarding Ex Parte Merriman.

#2 - When did it happen ?

What is April of 1861?

Also correct, Habeus Corpus was suspended Apr 27 1861, these events in question took place in late May 1861.

#3 - What was the adminstration response to this text ?

What is, first it was ignored, then worked around through legislation?

Actually the first reaction was outrage, followed by a very real threat to arrest Roger B Taney of it, historically there may have even been a warrant drawn up, but no one was willing to serve it.

But yes, in practice it was ignored and then worked around via flim-flam legislation.

#4 - What was the end result ?

What is, legislation was passed that made the actions legal?

Close enough, although the legislation in question is both Ex Post Facto and Unconstitutional regarding the seperation of powers.

#5 - How is this immediately relevant to our current times ?

What is, the current president is fond of giving himself whatever power he feels he should have regardless of legality?

Yes, specifically in the utterly Unconstitutional Executive Order given to justify it, in much the same fashion Lincoln tried to.

Bonus question

#6 - What followup decision after the crisis had passed, decided this issue in no uncertain terms ?

What is, the Habeus Corpus Act of 1863?

Nope, the decision of Ex Parte Milligan, 1866
http://www.civil-liberties.com/pages/exparte_milligan.htm

Basically the ruling states in no uncertain terms that trials of civilians by military tribunal of presidentially appointed officers are wholly unconstitutional from start to finish, as is any presidental suspension of habeus corpus.

So, Fred takes it with 5/5 and 0/1
Your score is A Go to the head of the class.

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The current attempted workaround, via "Enemy Combatant" is ineffective in that firstly, to apply that to an american, you would have to legally strip them of citizenship first, and as far as I am aware, there is no provison or means to legally do so save in the case of an immigrant who applied for it with false information.

The second attempted workaround, holding them offshore, also falls flat when it is americans convening the trial, and violates other provisions of due process by it's nature.

Also, the US Constitution does not *say* citizen, it says quite specifically, Person, and People, respectively, which means ALL people, ALL persons.

Therefore Constitutional protections apply, even to non-citizens, and you cannot alter the US Constitution by simply making a law contrary to it, you MUST amend it in the case of a change like this, or the law is invalid due to the trump of the Constitution being the highest law of the land.

Not that it stops Shrub, mind you - but producing and signing the MCA is in fact, an impeachable offence due primarily to Ex Parte Milligan.

Not that anyone in position to do so has the spine to press the matter.

Any suggestions for different periods/aspects of American History ?

-Frem

It cannot be said enough, those who do not learn from history, are doomed to endlessly repeat it