Here's a letter
to General Winfield Scott from Abraham Lincoln:
"To the
Commanding General of the Arm of the United States
You are engaged
in repressing an insurrection against the laws of the United States. If at any
point on or in the vicinity of the military line, which now used between the
City of Philadelphia and the City of Washington, via Perryville, Annapolis
City, and Annapolis Junction, you find resistance which renders it necessary to
suspend the writ of Habeas Corpus for the public safety, you, personally or
through the officer in command at the point where the resistance occurs, are
authorized to suspend that writ.
April 27, 1861
A. Lincoln"
In case you read
that and are waiting for the evidence of tyranny, here is the Constitution on
this point:
"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."
That provision
-- the sole constitutional provision authorizing suspension of habeas corpus --
is a clause of Article I of the Constitution. In Article I, the States created
the Congress and endowed it with ALL legislative power of the federal
government. The habeas provision, from section 9 of Article I, states the only
instances in which suspension may occur, and provides clear limitation on the
power to suspend the writ.
From that
provision, we know only Congress can suspend the writ of habeas corpus.
Now, some two
years after Lincoln began instructing his general officers and their staffs
that they were empowered to suspend the Great Writ in particular circumstances
described by Lincoln the Congress passed an Act authorizing Lincoln to suspend
the Writ. The Habeas Corpus Suspension Act of 1863 also provided immunity to
Lincoln and his officers from suits filed by those injured by his previous
suspensions of the Writ.
That Congress
ultimately authorized the suspension of the Writ in its 1863 Act tells you everything
that you need to know to wade through the questions about whether Lincoln's
order to General Scott (and his orders to other generals) constituted tyrannical
acts.
Lincoln, as
President, embodied the Executive Power of the United States. The executive
power prosecutes wars authorized by Congress and enforces laws passed by
Congress. Had CONGRESS passed legislation suspending the Writ, Lincoln's order
would be consistent with the Constitution, and, in that sense, at least, not an
anti-constitutional form of tyranny.
But to
appreciate the "lots of harm, lots of foul" nature of Lincoln's
actions, you have to understand what it is that the Writ of Habeas Corpus does.
While the
Constitution deposits all legislative power in the Congress and all executive
power in the President, it deposits all judicial power of the United States in
the Judiciary, consisting of the Supreme Court and such lower courts as Congress
should authorize.
The Writ of
Habeas Corpus is, in fact, a court order. "Writ" is just another way
of saying "Order." Habeas corpus, literally translated from Latin,
means "present the body" or "you have the body." In the
technical, legal sense, a Writ of Habeas Corpus is an Order of a Court
directing a representative of the executive power of the government to appear
in court, along with body (the person) whose rights or liberties are at stake.
The Order has the EFFECT of requiring the executive branch of a government to
appear before the judicial branch of a government, there to provide
justification for detaining the person, or suppressing them in the exercise of
their rights.
Suppose that
troops under General Scott observed a man counting troop transport cars on the
rail line from Philadelphia to Washington.
Or, suppose that
they discovered a man conducting measurements suggestive of a plan to attack
the line with explosives.
In all
reasonable contexts, under our tradition of law, it would be required that the
executive branch apply for search and arrest warrants to detain the suspect,
and the panoply of constitutional protections for persons accused of crime
would thereafter be available to the suspect.
Among the rights
are many commonly recognized ones: the right to be free from wrongful arrest, search,
and seizure; the right to representation by counsel; the right to trial by jury;
and, the right to be free from cruel and unusual punishments.
Outside the context
of a suspension of the Writ of Habeas Corpus, if the executive branch searched
and seized without warrant, denied legal counsel to the accused, refused trial
by jury, or imposed cruel and unusual punishments, a Petition by the injured
person would ask the judiciary to issue a Writ of Habeas Corpus.
The Petition for
a Writ of Habeas Corpus is the document filed by, or on behalf of, a person
wrongfully detained or wrongfully restrained in the exercise of their rights.
Today, shrouded
in mystery, most Americans, if they have any notion of Habeas Corpus at all,
associate the petition for a writ of habeas corpus as a device used by
convicted criminals to complain about their trials, convictions, and
punishments after the fact, and typically by filing habeas actions in federal
court after being prosecuted and convicted in State Courts. The mistake would
be to conclude that the Petition for a Writ of Habeas Corpus and the Writ
itself are just the clever tools of those who coddle criminals.
The Petition and
the Writ are, first and foremost, the tools of those that love liberty and
despise the deposit of too much power in the hands of the executive branch of a
government. And, in fact, the Petition isn't just about seeking
"post-conviction" relief for "criminals."
In 1992, for the
second time in my young legal career, I drafted and filed a Petition for a Writ
of Habeas Corpus. The brief version of the story shows the value of the
Petition and the Writ.
In the run up to
the 1992 Republican Convention in Houston, Texas, pro-life activists leading
Operation Rescue organized a series of demonstrations and protests in Houston.
The stated purpose of these events was to insure that the Republican Party
retained the pro-life plank of its quadrennial presidential platform.
While in
Houston, rescuers protested at local abortion businesses, including affiliates
of America's abortion superstore, Planned Parenthood. A local judge, whose
re-election had been supported financially by the law firm representing the
abortion stores, issued an Order that limited the rights to freedom of speech
within the vicinity of these abortion stores.
Seven pro-life
leaders decided that they would challenge the power of the judge to deny their
constitutional rights. They were Keith Tucci, Randall Terry, Patrick Mahoney,
Wendy Wright, Flip Benham, Joe Slovenec, and Bob Jewitt. They entered the
"forbidden zone" and prayed. By court order, they were arrested and
held without bond to answer before the local judge.
Together with my
late friend and colleague, Mark Troobnick, I researched and drafted a petition
for a writ of habeas corpus. Our petition sought review, first in the Texas
Court of Appeals and then in the Texas Supreme Court of the detention of the
praying protesters. The Texas Supreme Court granted the writ. Under the Court's
order, our protester clients were released pending their consideration of the
merits of the arguments Mark and I had prepared that the local judge's order
violated the right to freedom of speech.
Ultimately,
after full briefing and argument, the Texas Supreme Court affirmed its
provisional decision and overturned the speech restrictive injunction issued by
the local court.
Now, suppose
that Tucci, Terry, Mahoney, Wright, Benham, Slovenec, and Jewitt had organized
a similar peaceful demonstration against Lincoln's war, with the purpose and
effect of discouraging enlistment in the Union armies.
We know from
history that Lincoln and his generals did not brook interference with
enlistment or conscription. General Ambrose Burnside ordered the arrest and
courts martial of a former Congressman, Clement Vallandigham, because of his
public addresses about the War, and the effect of those addresses on military
enrollment in Ohio and elsewhere.
In the context
of that time, relief for Tucci & Company would be found, if at all, by Writ
of Habeas Corpus. But remember, Lincoln had suspended habeas corpus, and did so
without congressional approval for two years, and continued to do so with
congressional authorization for two years more. So the victory in Texas would
have been a doomed failure in the Lincoln's tyrannical Union.
