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 
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>>> [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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