How do we know this? Because the part of the CSA constitution that covers this is directly copied (with a few minor changes) from the U.S. Constitution! Now, in Davis' case, he had the blessing of Congress. But the fact is that, according to Taney, Congress can't delegate the Writ to the president or the military! What a laugher!
Consider this text: [used by permission]
"Taney's opinion in the Merryman case hardly supports your argument: Taney's first point finds all of Davis' later actions on the subject illegal, as the following excerpt shows: "First, the President, under the Constitution and laws of the United States, can not suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so." In other words, Taney believed that only Congress had that power and could not legally delegate it to the President or any other agency of government. Thus, if you take the Taney opinion to be the law of the land, then Davis' actions were as illegal as Lincoln's were.
But the Merryman case was not a Supreme Court case involving interpretation by the whole court of a constitutional question. It was only a lower court case in which Supreme Court Chief Justice Roger Taney rendered an ex-parte personal opinion. As such, it was not an authoritative statement of the law of the land.
In the final analysis, the constitutional power to suspend the privilege of the writ of habeas corpus is a carefully limited emergency power. In the late 1700s when the Constitution was drafted, and in the early 1860s, communications were difficult and Congress was not in session very many weeks in any year. Accordingly, constitutional law recognized that the President had to have strong powers to act swiftly and unilaterally in response to threats to national security arising from rebellion or invasion, and in the eyes of many people the power to suspend the writ was one of those powers (the Constitution is really ambiguous on who has that power).
In the end, both contending American presidents exercized and abused that power, both delegated it to their militaries to a large extent, both unionist and secessionist populations chafed under the abuse but tolerated it as necessary to national security in wartime, and the practice of the two presidents differed only in scale --- not in principle, IMHO."
So, will you condemn Davis? Now I know this may take a few years to sink in. But by the authority most often cited to blast Lincoln, Davis is just as guilty.
Walt
From Bouvier's Law Dictionary, Rev. 6th ed. (1856):
Ex parte - Of the one part. Many things may be done ex parte, when the opposite party has had notice; an affidavit or deposition is said to be taken ex parte when only one of the parties attends to taking the same.
As such, it was not an authoritative statement of the law of the land.
Even ex parte, that does not render it a "personal" opinion. It was the official, legal opinion of the Circuit court in question, and until appealed, is the "law of the land."
See post 505 for the text (attributed to Jay incorrectly). It seems that Justice Joseph Story also believed that vested powers could not be delegated. Joined by justices Washington, Livingston, Todd, Duvall, Joseph Story and John Marshall. The lone dissenter was William Johnson.
No he wasn't because Jefferson Davis did not suspend the writ. The Confederate Congress did.
Taney's opinion in the Merryman case hardly supports your argument: Taney's first point finds all of Davis' later actions on the subject illegal, as the following excerpt shows: "First, the President, under the Constitution and laws of the United States, can not suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so." In other words, Taney believed that only Congress had that power and could not legally delegate it to the President or any other agency of government.
Wrong again. Taney's words were in reference to the act of a president suspending the writ of habeas corpus on his own or directing others to do it by his own authority. That does not prohibit Congress from enacting a law to suspend habeas corpus and in that law directing the president to execute it's suspensions. In fact if it were to do so the ruling would be absurd - it would effectively mean that Congress would have to physically go out to the courts and execute their legislation themselves.
But the Merryman case was not a Supreme Court case involving interpretation by the whole court of a constitutional question. It was only a lower court case in which Supreme Court Chief Justice Roger Taney rendered an ex-parte personal opinion. As such, it was not an authoritative statement of the law of the land.
It is true that it was not a full Supreme Court ruling but nobody here has ever asserted differently. It was issued on the U.S. Circuit Court bench, which still carries the weight of a judicial ruling especially in the event that it is never appealed to the Supreme Court. Lincoln never made an appeal, thus Taney's ruling stands.
In the final analysis, the constitutional power to suspend the privilege of the writ of habeas corpus is a carefully limited emergency power. In the late 1700s when the Constitution was drafted, and in the early 1860s, communications were difficult and Congress was not in session very many weeks in any year.
That is absurd and flat out wrong. By 1860 thanks to the telegraph, virtually every city in the country save the unpopulated left coast states (which at the time sent a grand whopping total of 2 representatives and 4 senators between them) was accessible from Washington within a minute's notice. All Lincoln had to do is put out the call and every newspaper in the country would have reported it in less than a week's time if even that. Further, the assertion that Congress only met a few "weeks" a year is a lie. The Congresses of the era typically met 7 to 8 MONTHS out of the year. In 1860 for example Congress was in continuous session from New Year's Day (and in fact the month of december before it) through June 28th and came back on December 3rd through the end of the year for a total of 7 months, not weeks. In some years (such as 1862 and 1866) they went from January through July plus December for 8 months out of the year.
Accordingly, constitutional law recognized that the President had to have strong powers to act swiftly and unilaterally in response to threats to national security arising from rebellion or invasion
Cite me one single credible piece of constitutional law from the period that "recognized that the President had to have strong powers to act swiftly and unilaterally" on habeas corpus. You cannot and will not because there are none.
and in the eyes of many people the power to suspend the writ was one of those powers
Is that so? Then you should be able to name any given one of these "many people" who believed this, excluding of course the Lincoln administration itself, which invented the "power" for obvious reasons. So go ahead and name me one. Name one single legal scholar, supreme court justice, president, political scientist, founding father, or other reasonably qualified individual who held this view on habeas corpus prior to 1861. You cannot and will not because there aren't any. They believed the exact opposite and did so in virtual unanimaty as I have shown.
(the Constitution is really ambiguous on who has that power).
"All legislative Powers herein granted shall be vested in a Congress of the United States..."
Now tell me again. Exactly what is ambiguous about that statement from Article I?