If legislative authority was "usurped," I expect the legislature to make that claim.
"Are you saying Cadwallader was required to merely "notify" Chief Justice Taney, or provide evidence of a lawful suspension of the privilege of the writ?
"Are you saying Cadwallader was required to "notify" Taney upon his receipt of Merryman, or upon the authorization to suspend the privilege of the writ?"
I am saying that when Taney issued the writ, whatever military commander had custody of and was holding the traitor Merryman, was obligated to inform Taney that the privilege of the writ had been suspended in that area. Once Taney was apprised of the suspension, Rehnquist suggests that Taney, if he intended to proceed, had the obligation to inquire further regarding the matter.
"[T]he issue of the President's authority under the Constitution to suspend the privilege of the writ of habeas corpus was a tremendously important question of public law. Before the question was decided against the President, government counsel surely should have been heard from. Taney's hasty decision is all the more remarkable because he had only learned at the Monday session of the Court of the existence of the Presidential proclamation.... Taney's refusal to countenance any delay at all for the purpose of allowing the government to present its case does not speak well for either his judgment or his impartiality." (All the Laws But One, pg 41)
Chief Justice Rehnquist hit the nail on the head when he questions Taney's judgment and impartiality. Taney's actions and attitude are perfectly consistent with a partisan judge trying to spring a friend, rather one who is interested investigating the validity of a claim that cripples his authority. One need only reflect on Taney's typical bluster in Merryman ("Having, therefore, regarded the question as too plain and too well settled to be open to dispute ...") to realize he wasn't interested in impartiality.
Following Lincoln's justification, in his July 4 speech to Congress, for disregarding Taney's Merryman decision, [Attorney General] Bates issued an opinion justifying the President's action. It was not a very good opinion. It essentially argued thateach of the three branches of the federal government established by the Constitution was coequal with and independent of the other two. The President was thus not subordinate to the judicial branch, and so the latter could not order him, or his subordinates, to free Merryman. This proposition had been refuted by Chief Justice Marshall's opinion in Marbury v. Madison more than half a century earlier.Bates also described the suspension of habeas corpus as a "political" rather than a "judicial" matter and on that ground as well not subject to judicial intervention. The opinion would persuade only those who were already true believers.
However, current day Lincolnpimps wallow in that garbage which was so rightly dismissed by Rehnquist.
Rehnquist hit the nail on the head when he said that Lincoln's reasoning had been refuted more than a half century earlier by Chief Justice Marshall and that the Bates opinion pursuant to Lincoln's heresy was a poor one and would persuade only those who were already true believers.
Lincoln was lawfully REQUIRED to comply with the decision in Merryman. Instead, he chose to rape the Constitution.