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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