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 Posted: Tue Feb 28th, 2012 08:08 pm
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Texas Defender wrote: Hank C-

  The issue being debated is whether or not Mr. Lincoln had the legal authority to suspend the Writ of Habeas Corpus.

  In the Spring of 1861, Mr. Lincoln authorized certain military officers in certain areas of the country  to arrest without warrant anyone they suspected of disloyalty. He ordered his officers to disregard any Writ of Habeas Corpus issued to them and to say that he had suspended the Writ.

  When in the case of a certain Mr. Merryman, the Judicial Branch in the form of Chief Justice Roger Taney issued a Writ of Habeas Corpus requiring the arresting officer to show cause why Mr. Merryman should be arrested, the Writ was ignored. Some have maintained that Mr. Lincoln was prepared to arrest the Chief Justice if he persisted, so Mr. Taney had to back off and admit that he lacked the power to check the Executive.

  In September of 1862, Mr. Lincoln suspended the Writ by proclamation. Thus he formally took it upon himself to claim for himself powers reserved for the Congress in the Constitution.

  For two years, until Congress suspended the Writ in March of 1863, Mr. Lincoln's minions arrested thousands of citizens without warrants and held them in prisons as long as they wished to. As long as the Legislative Branch chose not to act, there was nothing that could be done about it.

  Thus, Mr. Lincoln proceeded to usurp the powers of the Legislative Branch and intimidate the Judicial Branch. You may well make a list of Mr. Lincoln's virtues but, based on his actions, your contention that he: "Held in high regard the power vested in the President by the Constitution" would not be a believable addition.

Habeas Corpus in the Civil War

  The question of when the declaration of martial law is appropriate was addressed by Supreme Court Justice David Davis in the case of Ex parte Milligan. In ruling against the government, he wrote: "Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction."

Very true. Lincoln also issued orders authorizing the suspension of habeas corpus between New York and Philadelphia on July 2, two days before Congress convened thereby killing the argument that he had to do it himself because Congress was not in session. He could have waited two days. Lincoln overstepped his bounds with presidential power. He believed he had the right. Some agreed and some didn't during his time. Some agree and some disagree now.

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