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