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 ><BR><BR><BR>**************************************<BR> AOL now offers free >email to everyone. Find out more about what's free from AOL at >http://www.aol.com. > >To subscribe, change options, or unsubscribe, please see the instructions >at http://listlva.lib.va.us/archives/va-hist.html Kevin R. Hardwick, Ph.D. Department of History James Madison University To subscribe, change options, or unsubscribe, please see the instructions at http://listlva.lib.va.us/archives/va-hist.html