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Hawes: The Suspension Of Habaes Corpus
Josey1
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Hawes: The Suspension Of Habaes Corpus
By Matthew Hawes
Apparently, the US Supreme Court didn't like what Lincoln did by suspending the right of habeas corpus. A Maryland secessionist, John Merryman, was arrested and placed under Martial Law. A writ of habeas corpus was issued by the Chief Justice of the Supreme Court, the Hon. Roger B. Taney, but the military refused to turn over Merryman. In Ex parte MERRYMAN, Taney explained his ruling that Lincoln's move was unconstitutional: "2. Under the constitution of the United States, congress is the only power which can authorize the suspension of the privilege of the writ." Hmm.
Read the summary of the arrest- "The petition of John Merryman, of Baltimore county and state of Maryland, respectfully shows, that being at home, in his own domicile, he was, about the hour of two o'clock a. m., on the 25th day of May, A. D. 1861, aroused from his bed by an armed force pretending to act under military orders from some person to your petitioner unknown. That he was by said armed force, deprived of his liberty, by being taken into custody, and removed from his said home to Fort McHenry, near to the city of Baltimore, and in the district aforesaid, and where your petitioner now is in close custody. That he has been so imprisoned without any process or color of law whatsoever, and that none such is pretended by those who are thus detaining him; and that no warrant from any court, magistrate or other person having legal authority to issue the same exists to justify such arrest; but to the contrary, the same, as above stated, hath been done without color of law and in violation of of constitution and laws of the United States, of which he is a citizen." Merryman was arrested by a military force and kept imprisoned in violation of his rights as a United States citizen!! What is scary is these are the same kind of tatics used by the Gestapo and other communist organizations, yet we see them used pre-communism by forces acting under the power of the Lincoln administration!!
Read the summary of the charges- "The prisoner was brought to this post on the 20th inst., by Adjutant James Wittimore and Lieut. Wm. H. Abel, by order of Col. Yohe, and is charged with various acts of treason, and with being publicly associated with and holding a commission as lieutenant in a company having in their possession arms belonging to the United States, and avowing his purpose of armed hostility against the government. He is also informed that it can be clearly established, that the prisoner has made often and unreserved declarations of his association with this organized force, as being in avowed hostility to the government, and in readiness to cooperate with those engaged in the present rebellion against the government of the United States. He has further to inform you, that he is duly authorized by the president of the United States, in such cases, to suspend the writ of habeas corpus, for the public safety."
Taney's request to have Merryman brought before him was denied by a military authority! After learning that he was not getting Merryman, Taney replied, "1. That the president, under the constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it. 2. A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offence against the laws of the United States, except in aid of the judicial authority, and subject to its control; and if the party be arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law." The charges were made against Merryman, but he was never brought before any real judicial authority, and it was clear that he wasn't going to be let go.
Taney continues: "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 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." Interesting, as Taney considers it obvious that only Congress has the power to suspend habeas corpus.
Taney points to a historical example: "When the conspiracy of which Aaron Burr was the head, became so formidable, and was so extensively ramified, as to justify, in Mr. Jefferson's opinion, the suspension of the writ, he claimed, on his part, no power to suspend it, but communicated his opinion to congress, with all the proofs in his possession, in order that congress might exercise its discretion upon the subject, and determine whether the public safety required it. And in the debate which took place upon the subject, no one suggested that Mr. Jefferson might exercise the power himself, if, in his opinion, the public safety demanded it." But hey, what would a Founding Father know?!
Taney is getting fired up now: "But being thus officially notified that the privilege of the writ has been suspended, under the orders, and by the authority of the president, and believing, as I do, that the president has exercised a power which he does not possess under the constitution, a proper respect for the high office he fills, requires me to state plainly and fully the grounds of my opinion, in order to show that I have not ventured to question the legality of his act, without a careful and deliberate examination of the whole subject." No authority. Hello...unconstitutional!
And here we go: "The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department."
Continuing on: "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." Taney here refers to the fact that the second article of the Constitution that dicates presidential authority has no mention of the president having the right to suspend habeas corpus.
Starting to sum up- "I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law." I'll let this critique speak for itself.
Let me give you this last quotation: "The constitution of the United States is founded upon the principles of government set forth and maintained in the Declaration of Independence. In that memorable instrument the people of the several colonies declared, that one of the causes which 'impelled' them to 'dissolve the political bands' which connected them with the British nation, and justified them in withdrawing their allegiance from the British sovereign, was that 'he [the king] had affected to render the military independent of, and superior to, the civil power.'"
Taney takes a parting shot here. What was happening here was exactly what had happened under Britian's watch. The Constitution had been thrown aside, and its laws broken - seems to give even greater vindication to those who said that they were escaping an oppressive government. And here, less than one year after the South seceded, we have proof that major unconstitutional acts were being committed.
One of the sacred principles of the United States is that people have a right to be heard. Taney goes on to mention that even if habeas corpus had been suspended legally, that the sixth article contains an extra protection saying that the accused would still have the right to a speedy trial. A military tribunal is hardly an impartial jury.
Habeas corpus is one of those sacred rights that have to be guarded, and it wasn't here. As the chief justice pointed out, the people of the United States were at the mercy of a military if judicial powers were usurped by that military. Taney's ruling was ignored by the military and the Lincoln administration.
Related Links:
Source: The Patriotist
http://www.federalobserver.com/archive.php?aid=3593
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
By Matthew Hawes
Apparently, the US Supreme Court didn't like what Lincoln did by suspending the right of habeas corpus. A Maryland secessionist, John Merryman, was arrested and placed under Martial Law. A writ of habeas corpus was issued by the Chief Justice of the Supreme Court, the Hon. Roger B. Taney, but the military refused to turn over Merryman. In Ex parte MERRYMAN, Taney explained his ruling that Lincoln's move was unconstitutional: "2. Under the constitution of the United States, congress is the only power which can authorize the suspension of the privilege of the writ." Hmm.
Read the summary of the arrest- "The petition of John Merryman, of Baltimore county and state of Maryland, respectfully shows, that being at home, in his own domicile, he was, about the hour of two o'clock a. m., on the 25th day of May, A. D. 1861, aroused from his bed by an armed force pretending to act under military orders from some person to your petitioner unknown. That he was by said armed force, deprived of his liberty, by being taken into custody, and removed from his said home to Fort McHenry, near to the city of Baltimore, and in the district aforesaid, and where your petitioner now is in close custody. That he has been so imprisoned without any process or color of law whatsoever, and that none such is pretended by those who are thus detaining him; and that no warrant from any court, magistrate or other person having legal authority to issue the same exists to justify such arrest; but to the contrary, the same, as above stated, hath been done without color of law and in violation of of constitution and laws of the United States, of which he is a citizen." Merryman was arrested by a military force and kept imprisoned in violation of his rights as a United States citizen!! What is scary is these are the same kind of tatics used by the Gestapo and other communist organizations, yet we see them used pre-communism by forces acting under the power of the Lincoln administration!!
Read the summary of the charges- "The prisoner was brought to this post on the 20th inst., by Adjutant James Wittimore and Lieut. Wm. H. Abel, by order of Col. Yohe, and is charged with various acts of treason, and with being publicly associated with and holding a commission as lieutenant in a company having in their possession arms belonging to the United States, and avowing his purpose of armed hostility against the government. He is also informed that it can be clearly established, that the prisoner has made often and unreserved declarations of his association with this organized force, as being in avowed hostility to the government, and in readiness to cooperate with those engaged in the present rebellion against the government of the United States. He has further to inform you, that he is duly authorized by the president of the United States, in such cases, to suspend the writ of habeas corpus, for the public safety."
Taney's request to have Merryman brought before him was denied by a military authority! After learning that he was not getting Merryman, Taney replied, "1. That the president, under the constitution of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize a military officer to do it. 2. A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offence against the laws of the United States, except in aid of the judicial authority, and subject to its control; and if the party be arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law." The charges were made against Merryman, but he was never brought before any real judicial authority, and it was clear that he wasn't going to be let go.
Taney continues: "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 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." Interesting, as Taney considers it obvious that only Congress has the power to suspend habeas corpus.
Taney points to a historical example: "When the conspiracy of which Aaron Burr was the head, became so formidable, and was so extensively ramified, as to justify, in Mr. Jefferson's opinion, the suspension of the writ, he claimed, on his part, no power to suspend it, but communicated his opinion to congress, with all the proofs in his possession, in order that congress might exercise its discretion upon the subject, and determine whether the public safety required it. And in the debate which took place upon the subject, no one suggested that Mr. Jefferson might exercise the power himself, if, in his opinion, the public safety demanded it." But hey, what would a Founding Father know?!
Taney is getting fired up now: "But being thus officially notified that the privilege of the writ has been suspended, under the orders, and by the authority of the president, and believing, as I do, that the president has exercised a power which he does not possess under the constitution, a proper respect for the high office he fills, requires me to state plainly and fully the grounds of my opinion, in order to show that I have not ventured to question the legality of his act, without a careful and deliberate examination of the whole subject." No authority. Hello...unconstitutional!
And here we go: "The clause of the constitution, which authorizes the suspension of the privilege of the writ of habeas corpus, is in the 9th section of the first article. This article is devoted to the legislative department of the United States, and has not the slightest reference to the executive department."
Continuing on: "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." Taney here refers to the fact that the second article of the Constitution that dicates presidential authority has no mention of the president having the right to suspend habeas corpus.
Starting to sum up- "I can see no ground whatever for supposing that the president, in any emergency, or in any state of things, can authorize the suspension of the privileges of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law." I'll let this critique speak for itself.
Let me give you this last quotation: "The constitution of the United States is founded upon the principles of government set forth and maintained in the Declaration of Independence. In that memorable instrument the people of the several colonies declared, that one of the causes which 'impelled' them to 'dissolve the political bands' which connected them with the British nation, and justified them in withdrawing their allegiance from the British sovereign, was that 'he [the king] had affected to render the military independent of, and superior to, the civil power.'"
Taney takes a parting shot here. What was happening here was exactly what had happened under Britian's watch. The Constitution had been thrown aside, and its laws broken - seems to give even greater vindication to those who said that they were escaping an oppressive government. And here, less than one year after the South seceded, we have proof that major unconstitutional acts were being committed.
One of the sacred principles of the United States is that people have a right to be heard. Taney goes on to mention that even if habeas corpus had been suspended legally, that the sixth article contains an extra protection saying that the accused would still have the right to a speedy trial. A military tribunal is hardly an impartial jury.
Habeas corpus is one of those sacred rights that have to be guarded, and it wasn't here. As the chief justice pointed out, the people of the United States were at the mercy of a military if judicial powers were usurped by that military. Taney's ruling was ignored by the military and the Lincoln administration.
Related Links:
Source: The Patriotist
http://www.federalobserver.com/archive.php?aid=3593
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Comments
Global Eye -- Strange Fruit
By Chris Floyd
"By their fruits ye shall know them." And by their nuts as well.
The acorns of any presidential administration never fall very far from the tree -- thus, the remarks made last week by one of George W. Bush's appointees to the U.S. Civil Rights Commission give us a pretty fair indication of what the future will look like if the Regime's seeds of tyranny ever come to full flower.
Bush emissary Peter Kirsanow told a Detroit crowd last week that America could "forget about civil rights" if there is another terrorist attack on the United States by "the same ethnic group that attacked the World Trade Center," the Detroit Free Press reports.
What's more, such heathen devilry would cause the righteous folk in the Homeland to rise up and demand that the Regime chuck every last Arab-American into a concentration camp, Commissioner Kirsanow proclaimed.
Kirsanow -- one of Bush's many prank appointments, a "Civil Rights" commissioner who has spent his career opposing civil rights programs -- said that he wasn't advocating an Auschwitz for Arabs, you understand. He was just saying that the public outcry for one would be almost impossible for the Bush administration to withstand. (And you know they'd try really, really hard, too.)
"Nobody will be crying in their beer if there are more stops, more detentions, more profiling," Kirsanow told the crowd -- which was made up largely of Arab-Americans, who came to protest the ongoing, unconstitutional detention of Arabs without formal charges being carried out by Bush's biggest joke appointment: Attorney General John Jesus Jehovah Ashcroft.
In fact, not only will there be a dearth of salt in the old hops, there will also be "a groundswell of public opinion to banish civil rights" altogether if al-Qaida comes a-callin' again, Kirsanow said.
Therefore, citizens should just accept the Regime's police-state measures and stop bellyaching about the "perceived erosion of civil rights," the commissar huffed. Otherwise, it'll be camps, curfews and kangaroo courts for the whole damn country.
Let's connect the dots -- or gather up the nuts -- shall we? As Harper's reports, Bush's vice president, Dick Cheney, tells us that "the prospects of a future attack are almost certain; not if, but when." Bush's FBI director, Robert Mueller, tells us: "There will be another terrorist attack. We will not be able to stop it." Bush's warlord, Donald Rumsfeld, tells us: "It is only a matter of time." And now Bush's point man on constitutional protection tells us -- openly -- that we can "forget about civil rights" when this unstoppable and absolutely certain new terrorist attack finally occurs.
So where does that leave the future of liberty in the land of the free? Dangling on a noose from a tall Texas tree, that's where.
Magna Force
But Bush is just an amateur when it comes to gutting age-old civil rights. Sure, he's busy stripping away constitutional safeguards that have stood for more than 225 years, but over in Tony Blair's own benighted isle of Blighty, they're putting the axe to the Magna Carta itself -- 800 years of legal protections against the power of the state, flushed down the loo in a trice!
Last week, Blair's "New Labour" (i.e., Old Tory in Nicer Shirts) government announced a sweeping "reform" of the British criminal justice system, with draconian measures far beyond the dreams of Maggie the Merciless -- or even murderous King John himself.
The proposed overhaul abolishes protections against "double jeopardy" -- being tried for the same crime more than once -- and does away with the right to trial by jury in some cases, The Independent reports. These were rights wrested from King John and set down in the Magna Carta in 1215. They are, as the paper notes, part of the cornerstone of Western jurisprudence, which has for centuries been guided by this ideal: that justice should be prejudiced in favor of the rights of the individual against the vast, untrammeled power of the state.
Now the Nicer Shirts will allow defendants to be relentlessly persecuted by the state, tried over and over again until the desired verdict is reached. You can never again be "proven innocent" of a crime, however malicious or sloppy the charges. They can always come back for another go at you.
The "reform" will also allow judges to try "complex cases" of criminal fraud and "risky" cases against mobsters without bothering with those pesky juries -- a plan provoking much glee in corporate boardrooms and Mafia hangouts (often one and the same place these days, of course). The wiseguys know it's much easier to corrupt one judge than 12 jurors.
What's more, judges will now be allowed to reveal any past convictions of a defendant on trial in a new case -- a heavy thumb tilting the scales toward conviction, especially in the many cases based on circumstantial evidence.
British justice once seemed an enlightened counterweight to more primitive concepts of law, which vested all rights and power in the state and left individuals to the mercies -- tender or otherwise -- of arbitrary rulers. It sought to hedge in the corrupting nature of power with safeguards that stood between the accused and the great engines of coercion embodied in the state.
But it takes courage and wisdom to uphold such an ideal, to transcend our monkey-brain urges toward herd and hierarchy. And the leaders of the West are plainly losing their nerve -- and their senses -- in the headlong flight from individual liberty now infecting the "civilized" world.
Nice shirts, though.
http://www.federalobserver.com/archive.php?aid=3612
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
As I understood, or thought I did, the privelege of the writ of habeus corpus applied to the civil judiciary in regard to those accused of a crime, right? Since when does an act of war merit the status, or safeguards of, a civilian crime accusation?
What happened on Septmber 11 was no less than an act of war! Those murderous scum managed to kill more American citizens than the entire Japanese Empire managed on December 7th, 1941. If memory serves they only managed to kill 2700 people at Pearl Harbor.
If the attackers had been captured, would they have been turned over to civilian authority to answer for their crimes? It seems that the Japanese were tried as war criminals and some executed by the military for trying(?)captured members of the Dolittle raid as criminals.
We had pretty strong feelings about our fighting men being treated as criminals. Does anyone deny that the Al-Quada/Taliban being held in Guantanomo were and are members of a foreign military actively engaged in acts of war against the US and her people?
Then where does the notion that they are or should be subject to the civil authority come from? They were taken in arms in the field. The most you can argue is that they are subject to the Geneva Convention, but they would still be prisoners of war until this war is over, and not subject to civilian courts. For that John Walker should be eternally grateful as under the Geneva Convention he could have been executed out of hand in the field.
So help me out guys, what am I missing here, or is this just another liberal can of Horse$hit from the Blame America First At Any Cost Crowd?
Nil Illegitimus Carborundum