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. To subscribe, change options, or unsubscribe, please see the instructions at http://listlva.lib.va.us/archives/va-hist.html To subscribe, change options, or unsubscribe, please see the instructions at http://listlva.lib.va.us/archives/va-hist.html