Constitutional Law. Right to Counsel. Habeas Corpus Granted by Federal Court to Set Aside Death Sentence of Defendant Whose Employed Attorney Admitted before the Jury to Tampering with the Evidence

1958 ◽  
Vol 44 (3) ◽  
pp. 463
Keyword(s):  
Constitutional Law ◽  
Federal Court ◽  
Death Sentence ◽  
Habeas Corpus

John Marshall’s Sea Mine

2018 ◽  
pp. 88-97
Author(s):  
Eric M. Freedman
Keyword(s):  
Life Expectancy ◽  
Constitutional Law ◽  
Thomas Jefferson ◽  
Federal Courts ◽  
The Other ◽  
British History ◽  
Habeas Corpus ◽  
Independent Judiciary ◽  
Political Background

The notion of an independent judiciary that restrained the other branches was an infant with a questionable life expectancy when John Marshall stated in placatory dicta in Ex Parte Bollman (1807)—quite wrongly as a matter of both British history and American constitutional law— that the federal courts had no inherent authority to issue the writ of habeas corpus in the absence of legislation. The Suspension Clause, he claimed, was merely precatory, an injunction to Congress to pass such legislation. The highly political case involved Erick Bollman and Samuel Swartwout, alleged members of the Aaron Burr conspiracy, and pitted prominent federalists such as petitioners’ counsel Robert Goodloe Harper and Charles Lee against the administration of Thomas Jefferson. After reviewing the factual and political background, this chapter details the arguments of counsel in favor of inherent judicial authority to grant the writ and Marshall’s rejection of them. Judicial autonomy was under threat at the time and Marshall was trying to defend it But his words were a judicial sea mine that created a long-term danger: Congress could by simple inaction evade the bedrock prohibition against suspension of the writ.

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