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Rights declared in words might be lost in reality. —Weems v. United States THE 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 congressionally led expansion across federal-state jurisdictional lines. The use of federal habeas corpus and removal statutes to interfere with state laws regarding 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 overlooked 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 support . In 1815, the thirteenth Congress responded to the arrests of federal revenue officers in New England by passing “An Act to prohibit Intercourse with the Enemy, and for other Purposes.” The act allowed federal prisoners held in state jails to remove their cases to the federal judiciary.4 Section eight of the act allowed for any suit begun in state court against persons “civil or military,” who had acted under color of U.S. law pursuant to their duties, to “file a petition for the removal of the cause for trial at the next circuit court of the United States.” The law forbade the state courts from further proceedings. The act also allowed for removal after “trial judgment,” but it did not apply to criminal trials. Throughout the tariff and secession crisis of 1833, South Carolina threatened to arrest any federal revenue officer who came to collect revenue from “the tariff of abominations.”The main sections of the 1833 act, numbers three and seven, dealt respectively with removal and habeas corpus. Removal was restricted to any time before the state trial began, but it allowed for “de novo” review if no state record existed.5 The habeas clause granted power to federal court judges, but not to the courts themselves, to grant writs “in all cases of a prisoner or prisoners, in jail or confinement, . . . for any act done, or omitted to be done, in pursuance of a law of the United States.” The debate in Congress took several forms: sectional strife, fears of executive power, deference to executive power, state sovereignty concerns, partisan differences, and concerns over the power of the national judiciary.6 In 1842, Congress passed an emergency habeas corpus law to allow a foreign national held in a state jail to remove his case to the federal courts (and perforce all similarly situated foreign nationals), to avoid prejudice against him by the local jury. A British naval officer, Alexander McLeod, who boasted that he had killed “a damned Yankee,” was arrested upon entering New York harbor . The British government made a formal request for the release of McLeod, and entreated President Martin van Buren to expedite the matter. The president responded that McLeod was held under state law, and neither he nor the federal government had the authority to release him. Teetering on the brink of war,7 Congress in August of 1842 empowered federal district court judges to issue writs of habeas corpus to foreign nationals, upon removal to a federal court. The 1842 bill “to provide remedial justice” provoked common fears among states-rights advocates that it would force the states to “surrender a vital part of [their] most cherished and rooted institutions.”8 Charles Ingersoll , a Whig congressman from Pennsylvania, thought the bill would “repeal all the state courts of...

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