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Winter 12-15-2017

Is ‘Military Necessity’ Enough? Lincoln’s Conception of Executive Power in Suspending Habeas Corpus in 1861
by Evan McLaughlin

Seton Hall University, evanmclaughlin15@gmail.com
Part of the Constitutional Law Commons, Legal History Commons, Political History Commons, and the United States History Commons

Abstract
In May 1861, President Abraham Lincoln's decision to suspend habeas corpus in Baltimore following an attack on Federal troops as they marched through Baltimore on April 19th to answer Lincoln’s call to defend the Capitol. To complicate matters further, Congress was still in recess, so they could not legislate a solution to the growing insurgency. In order to check these actions, Abraham Lincoln authorized General Scott to suspend Habeas Corpus between Baltimore and Philadelphia. When John Merryman was arrested, detained, and denied habeas corpus, Chief Justice Roger B. Taney issued an in-chambers decision, Ex Parte Merryman, to voice his belief that Lincoln’s actions violated the Constitution. Conversely, Lincoln answered this critique in his July 4 Address to Congress as he explained that the dire situation in Baltimore required the suspension in order to restore order and “faithfully execute” the laws of the United States. In other words, “military necessity” empowered Lincoln to authorize the suspension of habeas corpus.

The historiography regarding Lincoln’s decision to suspend habeas corpus revealed many interpretations regarding how Lincoln understood executive power and how this understanding influenced his decision to suspend habeas corpus. Currently, both Lincoln biographers including David Donald, Doris Kearns Goodwin, and Phillip Paludan, as well as works of legal historians including Laura Edwards and William Duker reached consensus regarding one significant reason motivating Lincoln’s decision: military necessity. The sources may not all use the same terminology; however, they each cited the complex and threatening situation in 1861 Maryland as the key factor that motivated Lincoln’s suspension of habeas corpus. Interestingly, many of the works in this segment of the Lincoln canon referenced Lincoln’s understanding of the Constitution in a general sense. They did not offer a nuanced and balanced legal analysis of Lincoln’s Constitutional understanding with regard to the suspension of habeas corpus.

This thesis synthesizes mainstream history's biographical perspective on Lincoln’s presidency and legal history's emphasis on habeas corpus jurisprudence to better understand how Lincoln understood his actions in light of the executive powers granted in the Constitution. Additionally, my work utilized 3 key primary sources that hadn't been fully considered and integrated in previous works. These sources include a letter sent from John Hamilton to Lincoln explaining the Framers’ intent regarding executive power and the government’s Constitutional ability to coerce compliance, Congress’s forgiveness of Andrew Jackson’s fine following his declaration of martial law in the defense of New Orleans, and a letter from Lincoln to Matthew Birchard in which Lincoln recognizes the executive’s ability to suspend habeas corpus: yet his power is checked by the American people.

President Lincoln was indeed Constitutionally empowered to suspend habeas corpus via the doctrine of military necessity. Furthermore, this power stems from the Framers’ intent regarding the powers of executive under the Constitution they created.


https://scholarship.shu.edu/cgi/viewcontent.cgi?article=3610&context=dissertations

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LSU Master's Theses Graduate School
2015

The Pope and the Presidents: The Italian Unification and the American Civil War
by Robert Attilio Matteucci, Jr.

This Thesis is brought to you for free and open access by the Graduate School at LSU Digital Commons. It has been accepted for inclusion in LSU Master's Theses by an authorized graduate school editor of LSU Digital Commons. For more information, please contact gradetd@lsu.edu.

ABSTRACT
The American Civil War and the Italian Unification occurred simultaneously, and the major parties involved – the American government, the Confederacy, the Italian state, and the still-independent Papal States – interacted with each other on numerous occasions. The
revolutionaries of the Risorgimento served as promising recruits for the Union’s armies, especially Garibaldi himself, although only Italians already in America actually fought. Italy would receive ironclad warships from the wartime United States. Those actions, however, alienated the Papal States from the North, presenting the Confederacy a diplomatic opportunity. The positive position of Catholicism in the South permitted the Confederacy to act and the possibility of diplomatic recognition by Catholic countries in Europe, particularly France, provided the Confederacy with the motivation to reach out to the Vatican. While the Confederacy did not receive recognition, it did receive a letter from Pope Pius IX expressing his sympathies, which the Confederacy at times portrayed as a formal recognition. Armed with the argument that the Pope had recognized its sovereignty, the Confederacy tried to dissuade Catholics from enlisting in the Union military. Any successes, however, were too minor to be effective. During the war, a bitter debate developed in the press about the letter’s meaning, a debate that extended into the postwar period largely as a weapon against Catholicism, especially when coupled with the Pope’s postwar support for former Confederates. The distortion of the letter as a sign of recognition lived on in anti-Catholic rhetoric, sometimes supported even by members of the U.S. government. The argument, however, was later refuted by Catholic prelates and historians.


“The Pope and the Presidents” contributes to a growing scholarship on the internationalization of the Civil War by revealing the complex relationships between all the parties in the Civil War and the Italian Unification. Taking the analysis a step further, it looks at these relationships in ways that many previous historians, ignoring the interactions of multilateral diplomacy, overlooked. It does so bringing together secondary research from scholars who examined the histories separately and using a wealth of newspaper articles and
other documents now accessible though digitalization.


https://digitalcommons.lsu.edu/cgi/viewcontent.cgi?article=2175&context=gradschool_theses
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wilber6150

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Dear Fellow Posters,

My answer to this question is a resounding "No!" However, I am not launching this thread to argue my position. i wish to hear YOUR position.

If your answer is "Yes," you are welcome, of course, to post, though I pretty much already know what you will be saying (slavery, slavery slavery). But if you suspect that there is more to the story about "The Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union," I would especially enjoy hearing from you.

This question has been prompted by comments on other threads which seem to say that this document tells the whole story and that other statements in letters, Congressional documents, essays, etc. from 1845-1860 have little bearing on the subject. I don't see it that way. Do you?

Sincerely,

James
This was the very first document they were producing in a critical moment of history,they certainly knew it's significance and that the entire world would read it,so it's beyond belief that they wouldn't put the most critical issues that mattered to them in it...In my opinion, after South Carolina failed to be followed by the border state's that they produced the second document which was strictly wordedto draw them in and to paint a better picture of the state for future foreign trading partners
 

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This one could be useful to a couple of current threads...

East Texas Historical Journal
Volume 48 | Issue 1 Article 8
3-2010

Confederates and Cotton in East Texas
by Judy Gentry

This Article is brought to you for free and open access by SFA ScholarWorks. It has been accepted for inclusion in East Texas Historical Journal by an authorized administrator of SFA ScholarWorks. For more information, please contact cdsscholarworks@sfasu.edu.

The Union naval blockade of the Confederate coastline severely disrupted existing marketing practices. Cotton producers east of the Brazos found their efforts to market their crops disrupted by the unavailability of shipping and the accelerating breakdown of the factorage system that had served their needs since the 1830s. The Union blockade, distance from the Mexican border and the main blockade--running port at Galveston, and the unavailability of enough wagons and teams for overland transport of crops kept the gold value of their cotton in the low range.
Government policies originating from the Confederate capital in Virginia and implemented by the Confederate army also affected the production and marketing of cotton in Texas east of the Brazos. The Confederate Produce Loan in 1861, a government cotton purchasing agent in 1863, Cotton Bureau policies in 1864 and early 1865, and in the last few months of the war, new Confederate Treasury Department rules greatly impacted the lives of cotton producers. Texas east of the Brazos did not share in the large profits that cotton producers in western Texas enjoyed during the war, but planters were able to survive economically despite the blockade and despite the coerced sales of half their crops. Some large planters successfully resisted both coerced sales and impressments, thereby preserving their ability to benefit from the short-lived high prices for cotton that prevailed in the third quarter of 1865.


https://scholarworks.sfasu.edu/cgi/viewcontent.cgi?article=2594&context=ethj
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This was the very first document they were producing in a critical moment of history,they certainly knew it's significance and that the entire world would read it,so it's beyond belief that they wouldn't put the most critical issues that mattered to them in it...In my opinion, after South Carolina failed to be followed by the border state's that they produced the second document which was strictly wordedto draw them in and to paint a better picture of the state for future foreign trading partners
Thanks for your post.

"Critical" is not the question. "True?" is.
 

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The Cotton Boom and Slavery in Nineteenth-Century Rural Egypt
by Mohamed Saleh

Abstract; The “staples thesis” argues that institutions in a given region could be explained by the nature of production of its prevailing staples, whereby slavery is likely to emerge in “slave-conducive” crops, such as cotton, rice, and sugarcane. This paper evaluates the thesis using a unique natural experiment from nineteenth-century rural Egypt, the cotton boom that occurred because of the American Civil War in 1861-1865. Historical evidence suggests that the cotton boom marked the emergence of the short-lived institution of large-scale agricultural slavery in Egypt’s Nile Delta, where all slaves were imported from East Africa, before the abolition of slavery in 1877. Employing the newly digitized Egyptian individual-level population census samples from 1848 and 1868, I find that cotton-favorable districts witnessed greater increases in household’s slave holdings and the share of slave-owning households between 1848 and 1868 than less favorable districts. Those districts also witnessed greater increase in the population share of free local immigrants. I examine several potential mechanisms of these effects, namely, cross-district differences in the relative scarcity of free local labor and inter-crop differences in economies of scale and skill-intensity ( results on mechanisms are not complete).

http://pseweb.eu/ydepot/seance/257_SAL2015COT.pdf

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ebg12

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During the civil war Egypt's ruler was Khedive known as "the Great builder." He litterally "banked" on the
knowledge that the Union blockade of the Southern ports couldn't be broken depriving Britain Mills of cotton.

With a boom in Egypt's cotton demand during the civil war, The money made by cotton allowed him to finish building the Suez Canal,
build the first opera house in Egypt, buy American Arms to rebuild his Army, and after 1865 hire approx. 50 ex-Union and
Confederate officers to build his new General Staff.

But after 1865, the American southern production of cotton had risen to it's 1850 level, and the demand for Egypt's cotton (which was a poorer quality then American cotton) dropped.

By that time in 1870, Khedive had involved Egypt in a war with Ethiopia, and to finance his war without profits from cotton exports...he sold the Suez Canal to Britain. Also, by that point, British financial institutions took control of Egypt's economy because of the debt that had incurred in the failed business of cotton growing in Egypt after 1865.

The beginning of Great Britain ruling Egypt is linked to the Union blockade of southern cotton during the civil war.
 
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How about the "truth" being something nobody then or now wants to address.
Americans have been inflicted with racism for over 400 years. "Preservation", or "extension" of slavery were code words (or substitute thoughts) for keeping Africans from gaining partial or general control of society or government. In the case of South Carolina, it was crucial to Whites not to allow Blacks in any numbers independence because of racial attitudes, not the absolute need of slavery.
South Carolina could not declare to the world that it was scared of the majority population of SC, that being enslaved Blacks.
White South Carolinians had no real interest in expansion of slavery into the western territories. The interest was in keeping a large number of free states from being created, and, possibly, inflicting on them the specter of free Blacks.
This racism was not peculiar to the Slave States. Fear of Blacks was obvious in most of the United States.
That is and was a "truth" that many will not speak about in public. The Whites of South Carolina did not want it a public issue.
 
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How about the "truth" being something nobody then or now wants to address.
Americans have been inflicted with racism for over 400 years. "Preservation", or "extension" of slavery were code words (or substitute thoughts) for keeping Africans from gaining partial or general control of society or government. In the case of South Carolina, it was crucial to Whites not to allow Blacks in any numbers independence because of racial attitudes, not the absolute need of slavery.
South Carolina could not declare to the world that it was scared of the majority population of SC, that being enslaved Blacks.
White South Carolinians had no real interest in expansion of slavery into the western territories. The interest was in keeping a large number of free states from being created, and, possibly, inflicting on them the specter of free Blacks.
This racism was not peculiar to the Slave States. Fear of Blacks was obvious in most of the United States.
That is and was a "truth" that many will not speak about in public. The Whites of South Carolina did not want it a public issue.
Thanks for your post.

Are you saying that secession had more to do with social concerns (white supremacy) than economic concerns (cotton)?

And do I understand correctly, when you say "South Carolina could not declare to the world . . ", that you agree that the Declarations were simply not true?
 

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As a direct offshoot of the ACW beginning with the 1871 'Treaty of Washington', (which included the settlement of the 'Alabama Claims'), the 'The Great Rapprochement'...

Kent State University
Digital Commons @ Kent State University Libraries
New Studies in U.S. Foreign Relations Kent State University Press
7-2015

Dissolving Tensions: Rapprochement and Resolution in British-American-Canadian Relations in the Treaty of Washington Era, 1865–1914
by Phillip Myers

This Book is brought to you for free and open access by the Kent State University Press at Digital Commons @ Kent State University Libraries. It has been accepted for inclusion in New Studies in U.S. Foreign Relations by an authorized administrator of Digital Commons @ Kent State University Libraries. For more information, please contact digitalcommons@kent.edu.

The British-American rapprochement was both an old and a new paradigm of American foreign relations. It was old because the rapprochement existed prior to 1861, a child of the treaties of the 1840s and 1850s. It was new because negotiations of each treaty between the United States and Britain had consistently been characterized by concessions, goodwill, informal understandings, and deliberate omissions to get the treaties signed and approved by Parliament and Congress. In other words, through all of the British-American treaties since the Jay Treaty of 1794, these themes persisted to benefit British-American understanding. The rapprochement grew before the War of 1812 and remained steadfast during the American Civil War. It remained a leading tenet in British-American relations. It peaked in 1908, and it held fast during World War I and afterwards. It was overall solid enough to keep British-American relations stable in the twentieth century. This paradigm and its nuances produced a new perspective about the issues in American foreign policy that throws new light on British foreign policy as well. It also casts revealing shadows back on antebellum American foreign policy that, in turn, illuminates events taken for granted in explaining the advent of American empire and the Republic’s entry into world affairs from the Mexican War through World War I. Robert L. Beisner argues that “1865–1900 was an era in which one
American diplomatic paradigm supplanted another.”1 The new paradigm for purposes of this study was the steady progress in resolving British-American tensions through joint high commissions, international arbitrations, and expert testimony in these forums that were absorbed by the rapprochement.


https://digitalcommons.kent.edu/cgi/viewcontent.cgi?article=1012&context=new_foreign_relations
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Thanks for your post.

Are you saying that secession had more to do with social concerns (white supremacy) than economic concerns (cotton)?

And do I understand correctly, when you say "South Carolina could not declare to the world . . ", that you agree that the Declarations were simply not true?
I do not think the Declarations represented the entire fundamental truth.
As to "white supremacy" in its most general definition, even Lincoln felt that Blacks in great numbers could not successfully integrate into American society. My point is that SC Whites could not tell the world how scared they were.Scared people do not ueually get a lot of sympathy.
 

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My silence, as you must know, is not tantamount to your declaration of the primacy of slavery. And as I recall, even you called the creators of the Sec Dec liars or the equivalent thereto.

Peace.



The lies were mostly those of omission, rather than commission. But, the omissions were of Slavery Not TRR;'s.
 

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Emancipation and Empire: Reconstructing the Worldwide Web of Cotton Production in the Age of the American Civil War
by SVEN BECKERT

HISTORIANS GENERALLY VIEW the U.S. Civil War as a crucial turning point in the history of the American nation. But it was more than this: the Civil War sparked the explosive transformation of the worldwide web of cotton production and, with it, of global capitalism. The cotton industry was among the world's largest industries at midcentury, drawing on the labor of perhaps 20 million workers. Prior to 1861, most of the world supply of raw cotton had been produced by slaves on plantations in the American South and was spun into thread and woven into cloth by textile workers in Lancashire. But in the decades following Appomattox, this world had given way to a global empire of cotton structured by multiple and powerful states and their colonies and worked by non-slave labor. Sharecroppers, tenant farmers, and peasants, often highly indebted to local merchants, produced most of the global cotton, a significant fraction of which was grown outside the American South, in such places as India, Egypt, West Africa, Turkmenistan, and Brazil.

The American Civil War was pivotal in these transformations. In its wake, nearly 4 million slaves gained their freedom in the nation that dominated world cotton production, leading to fears among merchants and manufacturers that the disruption of the "deep relationship between slavery and cotton production" might "destroy one of the essential conditions of the mass production" of cotton textiles.' By exploding global confidence in the structure of one of the world's most important industries, the war encouraged a new regime of bureaucrats and industrialists in cotton-consuming countries to secure supplies of the "white gold" not from slaves, but from sharecroppers, tenants, and peasants, decisively shifting the balance between free and coerced labor. And by removing several million bales of cotton from global markets between 1861 and 1865, the war forced manufacturers to find new sources for their crucial raw material, catapulting in the decades after Appomattox large areas of the world into the global economy. New forms of labor, the growing encasement of capital and capitalists within imperial nation states, and the rapid spatial expansion of capitalist social relations were the building blocks of a new political economy that dominated global affairs until the "Great War" half a century later. Indeed, the unimaginably long and destructive American struggle, the world's first "raw materials crisis," was midwife to the emergence of new global networks of labor, capital, and state power. The speed and flexibility with which merchants, manufacturers, and agricultural producers responded to the crisis revealed their adaptability and, not least, their capacity for marshaling new, indirect, but far-reaching forms of state power in place of direct ownership of human beings to secure plentiful labor. One of the most important chapters in the history of global capital and labor, in effect, was written on the battlefields of provincial America.

Emancipation and Empire: Reconstructing the ... - Harvard DASH
https://dash.harvard.edu/bitstream/handle/1/.../Beckert_EmancipationEmpire.pdf

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jgoodguy

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References
VIRGINIA’S RELUCTANT SECESSION
Volume 5, Issue Number 4 (May, 2002) of North & South Magazine (pages 80-89) article w the same title

In trying to protect slavery, the secessionists doomed it.

TO DESERVE THAT HIGH PRAISE, a tale must exude four qualities. The story must be sweepingly important. It must star vivid actors. It must illuminate rich complexities. And it must convey stunning ironies that highlight erring humans' capacity to achieve the reverse of what they intended.​
The order of secession correlates very well with the percentage of slaves.

Of these four requirements-wide importance, vivid stars, rich subtleties, stunning ironies-the importance of Virginia's decision to secede is the most obvious. At 4:00 p.m. on April 17, 1861, the hour of Virginia's decision-an hour haunted by months of paralyzing indecision-the very size of the Southern Confederacy remained uncertain. Eight of fifteen slave states remained in the Union. More than ever at this climactic moment, the differences between southern regions provided the neglected key to the history of the Old South. More than ever in 1860-61 , the Slave South resembled a three-step ladder, with lower percentages of slaves and less enthusiasm for disunion accompanying each step northward. Farthest South lay the Lower or Deep or Cotton South, with 46.5 per- cent of its population enslaved. These seven Lower South states all seceded between Abraham Lincoln's election on November 6-7, 1860, and his inauguration as president on March 4, 1861. Above the Lower South sprawled the four Middle South states (including Virginia), with 31.7 percent of the population enslaved. Still higher lay the four states of the Border South, with only 12.7 percent of the population enslaved.​

Source
1553568725310.png

@Pat Young has a graphic here

The Border and Middle Souths together formed the Upper South. No Upper South state had seceded as of April 16, six weeks after Lincoln took the oath of office. The Upper South contained 41 percent of the South's slaves,61 percent of its population,67 percent of its whites, and 81 percent of its factories. |ames McPherson has put it very well: "if all eight states" of the Upper South "had seceded, the South might well have won its independence. If all eight had remained in the Union, the Confederacy surely could not have survived as long as it did."1​
1. James M. McPherson, Battle Cry For Freedom: The Civil War Era (NewYork, 1988)' p.306.

 

ebg12

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Seton Hall University Dissertations and Theses
(ETDs) Seton Hall University Dissertations and Theses
Winter 12-15-2017

Is ‘Military Necessity’ Enough? Lincoln’s Conception of Executive Power in Suspending Habeas Corpus in 1861
by Evan McLaughlin

Seton Hall University, evanmclaughlin15@gmail.com
Part of the Constitutional Law Commons, Legal History Commons, Political History Commons, and the United States History Commons

Abstract
In May 1861, President Abraham Lincoln's decision to suspend habeas corpus in Baltimore following an attack on Federal troops as they marched through Baltimore on April 19th to answer Lincoln’s call to defend the Capitol. To complicate matters further, Congress was still in recess, so they could not legislate a solution to the growing insurgency. In order to check these actions, Abraham Lincoln authorized General Scott to suspend Habeas Corpus between Baltimore and Philadelphia. When John Merryman was arrested, detained, and denied habeas corpus, Chief Justice Roger B. Taney issued an in-chambers decision, Ex Parte Merryman, to voice his belief that Lincoln’s actions violated the Constitution. Conversely, Lincoln answered this critique in his July 4 Address to Congress as he explained that the dire situation in Baltimore required the suspension in order to restore order and “faithfully execute” the laws of the United States. In other words, “military necessity” empowered Lincoln to authorize the suspension of habeas corpus.

The historiography regarding Lincoln’s decision to suspend habeas corpus revealed many interpretations regarding how Lincoln understood executive power and how this understanding influenced his decision to suspend habeas corpus. Currently, both Lincoln biographers including David Donald, Doris Kearns Goodwin, and Phillip Paludan, as well as works of legal historians including Laura Edwards and William Duker reached consensus regarding one significant reason motivating Lincoln’s decision: military necessity. The sources may not all use the same terminology; however, they each cited the complex and threatening situation in 1861 Maryland as the key factor that motivated Lincoln’s suspension of habeas corpus. Interestingly, many of the works in this segment of the Lincoln canon referenced Lincoln’s understanding of the Constitution in a general sense. They did not offer a nuanced and balanced legal analysis of Lincoln’s Constitutional understanding with regard to the suspension of habeas corpus.

This thesis synthesizes mainstream history's biographical perspective on Lincoln’s presidency and legal history's emphasis on habeas corpus jurisprudence to better understand how Lincoln understood his actions in light of the executive powers granted in the Constitution. Additionally, my work utilized 3 key primary sources that hadn't been fully considered and integrated in previous works. These sources include a letter sent from John Hamilton to Lincoln explaining the Framers’ intent regarding executive power and the government’s Constitutional ability to coerce compliance, Congress’s forgiveness of Andrew Jackson’s fine following his declaration of martial law in the defense of New Orleans, and a letter from Lincoln to Matthew Birchard in which Lincoln recognizes the executive’s ability to suspend habeas corpus: yet his power is checked by the American people.

President Lincoln was indeed Constitutionally empowered to suspend habeas corpus via the doctrine of military necessity. Furthermore, this power stems from the Framers’ intent regarding the powers of executive under the Constitution they created.

https://scholarship.shu.edu/cgi/viewcontent.cgi?article=3610&context=dissertations

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We must remember that the Supreme Court does not have the power of writ (an order),
but only has the power of review.

The Supreme Court is not a referee over legislative & executive branches...it cannot "make"
either government branches do something according to the will of the justices.

All three branches have equal power to interpret the constitution as to what should
be the "law of the land."

President Lincoln having equal power to interpret the constitution did not have to explain himself
to Supreme Court Justice Taney.

So what, if Supreme Court Justice Taney in-chamber decision was that Lincoln violated the constitution
(no power of writ). This is the same Chief Justice in the Dred Scott Case (worst decision ever!).

The executive branch does not need to cite past cases of courtroom authority to
invoke its constitution right to determine the "law of the land". President Lincoln did not need
the approval of the Supreme Court to act upon his interpretation.

"The privilege of the writ of habeas corpus shall not be suspended, unless in case of rebellion..."
To paraphrase Lincoln: "that is why the Confederate Government is careful to say they are Secessionists, not Rebels."
 
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I think as far as whether he had the right in Baltimore, I question his right to EXPAND it from Washington to Maine. That is what created arrest and turning the entire Union into a Federal Police state. Friends on Friends, Neighbors on Neighbors, ran by the Army at the Presidents will.
 

ebg12

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I think as far as whether he had the right in Baltimore, I question his right to EXPAND it from Washington to Maine. That is what created arrest and turning the entire Union into a Federal Police state. Friends on Friends, Neighbors on Neighbors, ran by the Army at the Presidents will.
https://www.smithsonianmag.com/history/lincoln-as-commander-in-chief-131322819/

Yes, Lincoln as Commander in Chief did achieve his political objective of Preserving the Union by Marshal Law against Rebels.
Yes, The Constitution did give him the right to suspend habeas corpus by "his will" in "time of Rebellion".
 
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There was no rebellion, it was secession.
"Marshal Law against Rebels"
It was marshal Law against the Union!! He purposely violate the 1st Amendment. And others.

add-
1st Amendment
4th Amendment
9th Amendment
10th Amendment

Basically, he shunned the US Constitution all together.
 
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