I don't have the text of Merryman in front of me.
Milligan, however, does explicitly defend the constitutional
right of the Executive to suspend Habeus Corpus in time of
rebellion or national crisis.
According to Justice Davis, who wrote the majority opinion in
Milligan, Lincoln acted appropriately and within his
constitutional mandate.
Taney's view of the issue depends upon an inference about the
intent of the founders from a silence in the text of the
Constitution. The Habeus Corpus clause appears in Article One
of the Constitution, which defines the powers of the
legislature. When the Constitution defines the powers of the
Executive, it is silent on the issue. Does that silence mean
that the power to suspend Habeus Corpus rests solely in the
legislature? Taney said yes. Davis, in Milligan, said no.
The war powers provisions, vested in the Executive, can easily
be extended to include suspension of Habeus Corpus. In the
case of Merryman, Lincoln needed to act with dispatch and
speed--or, as the founders would have said, he needed to act
with energy. Davis bases his opinion on the this feature of
the executive branch--that it is designed and intended to be
able to act with speed and energy in times of emergency.
All best,
Kevin
---- Original message ----
>Date: Sat, 24 Feb 2007 07:56:08 EST
>From: [log in to unmask]
>Subject: Re: The Constitution
>To: [log in to unmask]
>
>Ex Parte Merryman is the applicable habeas case and Chief
Judge Taney
>clearly and convincingly demonstrates Lincoln had no
Consitutional right to suspend
>habeas corpus, since that is the perview of the Congress, not
the executive.
> There is no serious debate about that fact and the case
remains the law of
>the land to this day.
>
>Ex parte Milligan was a post war case.
>
>JD South
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Kevin R. Hardwick, Ph.D.
Department of History
James Madison University
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