ABUSE OF POWERS!!!!!
----- Original Message -----
From: Paul Finkelman <[log in to unmask]>
To: <[log in to unmask]>
Sent: Wednesday, February 14, 2007 5:28 PM
Subject: Re: [VA-HIST] Long memories
> but of course the Constitution does not say "who" can suspect HC; just
> say when it can be suspended: "in cases of rebellionor invasion." It
> is hard to imagine the framers did not intend for the presidnet to be
> able to suspend HC; imagine if the British had captured the House and
> Senate in 1812; but Madison and the army was still in DC; would Madison
> have been constitutionally prohibited from suspending HC during an
> "invasion." Thus, Lincoln appropriate suspended HC to arrest Merryman
> who was burning bridge and trying to raise an army to march on
> Washington. Milligan does not in fact counter Lincoln's position on
> Merryman; and Taney, acting on his own, did not have the supprot of the
> Court. Taney of course was a proslavery secessionist who did everything
> he could to undermined the safety of the nation after the War begin.
>
> Yosouth does not mention that Jefferson Davis suspended habeas corpus
> more often than Lincoln and arrested far more civilians.
>
> Paul Finkelman
> President William McKinley Distinguished Professor of Law
> and Public Policy
> Albany Law School
> 80 New Scotland Avenue
> Albany, New York 12208-3494
>
> 518-445-3386
> [log in to unmask]
> >>> [log in to unmask] 02/14/07 6:18 PM >>>
> Lincoln unilaterally decided in April 1861 that he had the power to
> suspend
> the writ of habeas corpus, and ordered it. He then had almost the
> entire
> Maryland legislature arrested and thrown into jail at Ft. McHenry (along
> with
> closing down almost 300 newspapers who criticized him). John Merryman,
> one of
> the MD legislators, filed a writ of habeas corpus with Chief Justice
> Roger B.
> Taney. In Ex Parte Merryman, Taney found that Lincoln had violated the
>
> Constitution since only the Congress had the power to suspend habeas
> corpus. He
> ordered Lincoln to release Merryman and sent his order over to the
> White
> House. Lincoln's response was that he didn't care what the Supreme
> Court thought
> and issued an order for the arrest and imprisonment of Chief Justice
> Taney
> at Ft. McHenry. Fortunately, the federal Marshall in DC hesitated to
> carry
> out the arrest order and it was never done (the document is in the
> National
> Archives). Lincoln, who swore before Taney to uphold the Constitution
> when
> inaugurated, had decided that he, not the Supreme Court, was the final
> arbiter of
> the Constitution. He routinely took such actions during the war
> putting his
> supposed goal of "saving the Union" ahead of his sworn oath to uphold
> the
> Constitution and the law of the US.
>
> After the war, in 1866, in Ex Parte Milligan, the US Supreme Court
> found
> that Lincoln's military tribunals, which tried people during the war in
> place of
> civil courts, were unconstitutional. This included the court which
> convicted the so-called assassination conspirators, who unfortunately
> had already
> been hung. The court found that Lincoln's policies, as in the case of
> Ex Parte
> Merryman, had totally usurped the power given to the judiciary under
> the
> Constitution.
>
> Many refer to Lincoln as the American Ceasar due to his dictatorial
> actions
> in these regards.
>
>
>
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