"And nowhere is it denied the president; the Constitution is silent on presidential power to suspend the Writ."
Actually Walt, you're quite wrong. The Constitution specifically delegates that power to the "legislature". But here is more proof for your edification -
'In question was the second clause of Article 1, Section 9, of the United States Constitution, which provides, "The priveledge of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it".
This provision corrresponds to the clauses in the Petition of Right, 3 Charles 1, Chapter 1 (1628), limiting the discretion of the King to suspend the writ of habeas corpus, and on this basis it might be construed to limit the discretion of the President. Lincoln so read it, and, since in his judgement there was a rebellion underway and the public safety required it, he thought he had the power on his own to suspend the writ.
But Lincoln was wrong. A number of important prerogatives of the King -- e.g., coining money, fixing the standard of weights and measures, declaring war, and raising armies -- had been transferred to Congress, and the same was true for the suspension of the writ of habeas corpus, as is plain from the debates of the Philadelphia Convention. And the clause on suspending the writ was understood from the beginning as a limitation on the power of Congress, -- not the power of the President. So obvious to this reading of the founding fathers of the United States that, on January 22, 1807, President Thomas Jefferson sent a message to Congress, asking for a suspension of the writ of habeas corpus for three months with respect to the persons charged on oath with treason and certain related crimes, and although there was a seemingly dangerous rebellion underway, Congress denied the request.'
It is obvious from the framing of the second clause of Article 1, Section 9 of the United States Constitution that the suspension of the Writ of Habeas Corpus was concieved to be the prerogative of Congress Most particularly, the clause was introduced as an express restriction upon legislative power, and in that shape adopted with immaterial changes: - it so appears in 5 Elliot's Debates 445-446, 484, 536, 561, - Tansill Documents 571-572, 627, 707, - 2 Ferrand's Records 340-342, 438, 576, 596, 656 (Madison's Notes, August 20 and 28, September 10, 12, and 17, 1787).
But the most damning evidence comes from the Chief Justice Roger B. Taney's own judgement against Lincoln's unconstitutional act when he stated "If the authority which the constitution has confided in the judiciary department and the judicial officers may thus, upon any pretext or under any circumstances, be usurped by military power at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds his life, his liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found." Very true were these words, but Merrymen remained in confinement, and thousands of others like him were imprisoned on the mere suspicion of disloyalty measured, not by legal principles, but partisan ideology.
'Taney sent his writ, his order for Merryman's release, and his opinion to the President, requesting of him to take care that the laws be faithfully executed, but Lincoln placed the papers in his desk, and went on fighting the war against the South, which the power brokers and financiers backing his party had demanded. The evidence is convincing that Lincoln went a step further, and personally ordered the arrest of the Chief Justice. The arrest was never carried out, because it was deemed politically too risky.' - 'A Constitutional History of Secession'- John Remington Graham
In 1863 Congress finally authorized the executive authority for suspension of the writ, however, in 1861 no such authority lawfully (i.e. constitutionally) existed for the President of the United States. Lincoln clearly was a tyrant.
