[4CJ]

I read it. Ex Parte Merryman was a decision issued from the Circuit Court bench in Baltimore, not the Supreme Court. All it is is an indication of how Taney would have voted had the matter come to the Supreme Court, but he was only one voice.

It's still a decision.  Until overruled by the Supreme Court, it was and still is a binding decision.  Where in the Constitution does it grant the self-appointed Chief Justice Lincoln the power to ignore the opnions and decisions of the judiciary?

Ex Parte Milligan said that habeas corpus could not be suspended in states like Indiana which were not in rebellion and where the courts operated freely. It did not address Lincoln's actions in 1861.

They cannot justify on the mandate of the President; because he is controlled by law, and has his appropriate sphere of duty, which is to execute, not to make, the laws; and there is "no unwritten criminal code to which resort can be had as a source of jurisdiction."

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances.

The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong.

Martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the "military independent of and superior to the civil power" -- the attempt to do which by the King of Great Britain was deemed by our fathers such an offence, that they assigned it to the world as one of the causes which impelled them to declare their independence.

Davis stated that the Constitution could not be suspended in war or peace, and reiterated that the suspension of the writ does not destroy the writ.  The entire case is based on the suspension of habeas corpus, which was of course, found unconstitutional.  The President is the Commander-in-Chief of the military, Davis makes it clear that he cannot suspend the laws and subvert the Constitution. 

It appears that Chief Justice Rehnquist's opinions are correct, but then he knows more about the law and the Constitution than you.

I never stated that I knew more about the law than Chief Justice Rehnquist, I have the utmost respect for the man.  But again, how can his non-judicial opinion overrule that of multiple decisions on the subject?

[Non-Sequitur]

But as a circuit court decision it does not decide the constitutionality of the issue. Only the Supreme Court can do that. Should Lincoln have either abided by or appealed the ruling? Yes. But did he act unconstiutionaly in suspending habeas corpus in the first place? We don't know.

Let's look at other parts of the decision, shall we?

"It will be borne in mind that this is not a question of the power to proclaim martial law, when war exists in a community and the courts and civil authorities are overthrown. Nor is it a question what rule a military commander, at the head of his army, can impose on states in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service, during the late Rebellion, required that the loyal states should be placed within the limits of certain military districts and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theatre of military operations; and, as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority disputed. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration...It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."

So it is not a question of who suspended habeas corpus but where and when.