Tuesday, August 19, 2014

Suspending Habeas Corpus: A Longstanding American Tradition

The right to a writ of  habeas corpus  has been suspended in 21st century America. Again. For some patriots, this is a shocking turn of events, but to most people, it is business as usual. And, in fact, it keeps happening over and over again and is an ongoing American tradition. Likewise, it is equally traditional, every time it happens, for those who care about the loss of civil liberties to act as if this is the first time it has ever happened.

When George W. Bush first suspended the right to petition for a writ of habeas corpus as part of his "War Against Terror", a war that his successor has kept in effect, government experts pointed out that Abraham Lincoln had done the same.


Not everybody, however, is surprised that Lincoln did this, as a sizable group of Americans feel that President Lincoln is known for overreaching and taking power for the executive branch, in contravention of constitutional guarantees. But most of those people would be shocked to learn that Thomas Jefferson was guilty of the same.

Recently, I came across a pamphlet consisting of two letters attributed to Joseph Alston, Theodosia Burr Alston's husband, and privately published in South Carolina in 1807. I am not going to reproduce everything in the pamphlet here, but I will provide a sample:

A few months since, and I hardly should have been persuaded that the subject of this letter could ever have engaged the pen of an American citizen. When I read the afflicting details of individual oppression, and of military violence which disgrace the history of almost every other country, I turned involuntarily to contemplate the delightful contrast provided by the admirable provisions of our constitution and laws, for the security of the citizen, and the strict subordination of the military to the civil authority. Unaffectedly as I sympathized with the victims of arbitrary power, strong as was my indignation against the oppressor, I could not avoid mingling with these generous feelings, something like the emotion of him, who  encircled by his family, and seated before the blazing hearth of his comfortable mansion, hears the pelting storm impotently rattle against his windows, or listens to the piercing blast, as it whistles along the distant heath.
At this point one might suppose one is reading a fictional work by one of the Brontës, possibly Charlotte in Jane Eyre. Were there really any heaths in post-colonial America?  The writer sounds so British and the prose is a bit purple. But no, it was Joseph Alston of South Carolina, or some member of his household, who wrote this.

When I extended my view from the constitution to the Laws to the disposition, the manners, the habits that characterise my countrymen, I beheld other and still nobler pillars supporting the temple which liberty had erected to justice, and in the conscious exultation of my heart, have not unfrequently exclaimed-- "Here we are safe! Unhappy man, whom flight has rescued from oriental or occidental despotism, wretched fugative [sic] from the north or the south, repose without fear in the sanctuary which heaven has provided for you. Here, here, oppression dare not, cannot show her hideous form!"
One can well imagine Joseph Alston frequently exclaiming this on his rice plantation. But I can't also help but wonder: did he really write this himself?

Little did I imagine that from meditations like these I should be roused by the daring and atrocious scenes lately acted in New-Orleans! Little did I imagine that I should so soon behold the constitution, upon which I proudly rested, bleeding under the poignards of its military assassins; the laws, to which I looked for protection, trampled upon;  the civil authority annihilated. Mark, Sir, the picture which General Wilkinson has presented to our contemplation! Encamped with his army, within sight of the enemy who had invaded our territories, he suddenly concludes with them an armistice and withdraws the troops. The surrounding country is astonished, but astonishment is quickly succeeded by  feelings of a different nature. By forced marches he proceeds to New-Orleans; --he arrives-- treason! rebellion! are sounded --and in an instant the whole city is in one scene of confusion, amaze and consternation. The approach of an army of 20,000 insurgents in announced! Camps are formed, the militia are enrolled, pickets are hastily thrown up, entrenchments made, spots marked up for batteries, in a word preparations for battle strike every eye and fill every heart with emotion. Armed vessels are equipped and dispatched up the river, guards are stationed at different points, with strict orders to suffer none to pass without  a permit from the General! Military law prevails!
The imposition of Martial Law is always the precursor to other, more specific violations of civil liberties. We see this happen today more often than is comfortable. It was not essentially different back in 1807. It starts with harassing the press.

The press ventures a comment about these measures, and it is put down; to doubt the reality of the danger is to be an accessory to the conspiracy, general words, long spoken, and perhaps misunderstood, or falsely  reported by malice, are conjured up as strong presumption of guilt, every man is surrendered to the mercy of his enemy, since to have a letter addressed to him is to be constituted a criminal. The people, agitated and full of suspense regard in awful silence the portentous looks of this new arbiter of their destinies, and tremble at every movement.
In this last paragraph, there is reference to several events that are explained in the margins. For instance the sentence about how having a letter addressed to a person  makes him a criminal refers to a draft drawn on Edward Livingston by Aaron Burr. Livingston owed Burr money. Burr needed the money repaid, so he had Erich Bollman deliver a letter from Burr to Livingston requesting payment. Livingston liquidated some assets and paid the debt to Bollman. When this happened, both Livingston and Bollman were accused of plotting to overthrow of the government. This event is described in detail in the biography of Edward Livingston. As to the words long spoken which are used as evidence, the footnote refers to a letter by General Wilkinson to President Jefferson in which he says: "writs of habeas corpus have been issued for the bodies of Bollman, Swartwout and Ogden, the two latter by Judge Workman, who is strongly suspected for being concerned with Burr in his conspiracy, as I have proof this man declared sometime since that the republican who possessed power and did not use it to establish a despotism is a fool." And so, based on this kind of evidence, various persons were summarily arrested,  and locked away. and shipped to Washington City by the General, in order to prevent them from establishing a "despotism". And one of the lawyers who attempted to defend the accused, a Mr.  Alexander, "was dispatched with others at a stormy and dangerous season, on a voyage to the U. States: happily for him he arrived safe: he was instantly discharged on a Writ of Habeas Corpus, and left at liberty to return to his business at Orleans, having merely been interrupted in his professional pursuits, for a few months, imprisoned part of the time, exposed to the dangers of a winter's passage from and to Orleans, put to some little expense, and obliged to traverse a distance of between two and three thousand miles."

--He issues his mandate, and various citizens of the United States are arrested: two gentlemen at the bar have the courage to demand a Writ of Habeas Corpus in their favor -- and one of them shares the fate of those he would have rescued from the prosecution, the other is denounced as a  traitor! The Judge, to whom the application was made, has virtue and spirit enough, in spite of the military despotism that surrounds him, to grant the writs, and the subjects of these writs, excepting one, are immediately removed to remote and secret places of confinement, and the court is insulted with the most trifling, unsatisfactory and illegal returns. The prisoner for whose removal there had not yet been time, is at length brought up, no cause for his confinement is shewn, and he is liberated. The Judge who has committed this daring outrage upon the orders of the commander in chief, is immediately declared to be strongly suspected of being himself a conspirator, and the prisoner he had liberated is again  arrested with new victims of suspicion and malice. Writs of Habeas Corpus are again applied for, again issued: Wilkinson, emboldened by the tame submission of the civil executive, which willingly crouches at his feet, no longer evades, but openly defies the order; 
What reason did General Wilkinson give for openly defying court orders to turn over the "bodies" of those arrested? He declared that the country was "menaced by insurrection" and that he would take and seize all others "of whose guilt he is assured."

And here, after recounting these facts, the letter turns to what should by now be the familiar lament of all freedom loving people when it turns out that the freedom they believed was theirs is not guaranteed or automatic or even eventually forthcoming:

Gracious God! In what times, in what country do we live? Have we been transported to the land of our ancestors? Has the elder Charles been restored to us, and is this an edict from the Star Chamber? Do we enjoy, in France, the halcyon days of that Louis whom the folly of posterity has surnamed the Great, and is this the new formula of a captilatory in justification of Lettres de Cachet?Or is it in poor, devoted Ireland that the sanguinary administration of the murderer of Orr and the prosecutor of Finnerty is restored, and is this a proclamation from the castle, announcing to a degraded and insulted people the return of the horrors of '97 and '98? Espionage systematised and encouraged, rewards offered for perjury, secret denunciations, arbitrary imprisonment and military law! No, we are neither in England nor in France, nor in Ireland. It is neither the sceptered Charles, the Great Louis nor the Earl of Camden who thus daringly tramples upon all law, and without trial, without even preferring an  accusation before any constituted tribunal,  consigns to prison, or the dungeon, the unhappy object of his suspicion or the unsuspecting victim of his malice. America -- America, the abode of Liberty, the empire of the laws -- is the scene of these outrages, the period of their perpetration the beginning of the nineteenth century! The perpetrator an officer of the United States Army!
Doesn't that sound like every lament against the recent loss of liberty we currently read on Facebook? It's the beginning of the 19th century, people! This shouldn't be happening.

Who wrote this little pamphlet? It is signed Agrestis,  but the attribution in the copy that I got is to Joseph Alston.

And yet I cannot help but wonder if Theodosia had a hand in writing this. There are a lot of learned references to the ancients, many quotes in Latin, and other scholarly touches that seem less likely to come from Joseph, the college drop-out,  than from his more erudite wife.

Was it in a moment of peace with the whole world, of profound domestic tranquility, in the midst of a people faithful to themselves and to their country that the cruel  and atrocious scenes acted in ancient Sicily were necessarily renewed in an American province? And is the salus populi now to be urged in vindication or the modern Verres under whose Praetorship, the unhappy objects of his tyranny, like the persecuted Sicilians neque suas leges neque nostra senatus consulta neque communia iura tenuerunt? Yes-- this plea has been urged! This plea has been advanced! A President of the United States condescends to be the apologist of these outrages, continues the offender in the high military command that enabled him to effect them, and Wilkinson triumphs in his guilt! Sacred Spirit of '76! Sleepest thou in the grave with Washington, Adams and their generous compatriots? Or dost thou  still linger in our land?
For a translation of that bit in Latin, probably by Cicero, you might refer to this site:


John Adams was still alive in 1807, so the part about him being in the grave with Washington seems a little premature. However, that's a mistake a contemporary might easily have made.

To be fair to Jefferson, the president referred to above as condescending to be an apologist for outrages,  he was not actually the first president to have violated the Spirit of '76. That would be Washington with his actions during the Whiskey Rebellion. And Adams was not much better, conducting an undeclared Quasi-War against France and promoting the Alien and Sedition Act  But when you are fighting to condemn the actions of one president, there is a temptation to paint all the others as saints. Unfortunately, we see that happening today, where if the current president is to be condemned, then the previous one is to be lauded, and vice versa,  when both are guilty of very similar behavior, though they belong to different parties.

The fact that America was only on its third president and already a constitutional crisis was at hand may have left the pamphleteer very little American history to rely on for argument's sake. But who has the author of this pamphlet chosen to  compare  General Wilkinson with? Gaius Verres, born 120 B.C. died 43 B.C. who, among his many corrupt practices,  used to accuse the slaves of wealthy landowners of conspiring with Spartacus in his slave rebellion. Is this likely to have been a preoccupation of Joseph Alston, the slaveholder and plantation owner? Or is it more likely to be something that his abolitionist, Latin-reading wife was thinking about?

The moral indignation and emotional tone also remind me of the letter Theodosia wrote to Dolley Madison later, when her father was in exile:


The offenses against which the person signing only as Agrestis complains were real. They did happen. It was as wrong then as it is now for the military to summarily arrest, indefinitely detain and deny a right to trial. But it is unclear whether the arguments made were effective, despite the obvious erudition and ardor of the writer. How many American voters regularly read Cicero in the original, even in 1807? What did most slaveholders think about Spartacus? Could Aaron Burr and his supporters have used a more populist writer to defend them?

Who do you think wrote that pamphlet? Is there any hope today for the vanished Spirit of '76?

Theodosia and the Pirates

If you want to read this pamphlet for yourself, it is available from Amazon:

A Short Review etc

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