“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” – U.S. Constitution, Article I, Section 9

Abraham Lincoln was the first president to revoke habeas corpus, the legal filing that gives an imprisoned person the right to challenge the legality of his or her detention before a court. The Civil War had just started, Congress wouldn’t be in session until July, and Lincoln said he needed a way to control Confederate agitators residing in certain parts of the Union.

Among the first to be denied habeas corpus under Lincoln’s order was John Merryman, a Maryland secessionist accused of burning bridges and disrupting telegraph lines. He was roused in the middle of the night  by Union soldiers and taken into military custody. The very next day, another Maryland native – Roger Taney, the chief justice of the U.S. Supreme Court – came to his defense.

Taney (pictured here) was clearly Lincoln’s nemesis. A Democrat and former slaveholder, Taney wrote the majority opinion in the 1857 Dred Scott decision that further entrenched slavery.

Chief Justice Taney issued a writ of habeas corpus for Merryman in defiance of Lincoln’s order. Lincoln and the military ignored Taney’s writ, which prompted the chief justice to issue an opinion on May 28, 1861.

In Ex parte Merryman, Taney pointed out that the constitutional provision regarding habeas corpus is found in Article I of the Constitution, the part that addresses Congressional powers, which meant that only Congress could lawfully suspend it – not the president.

Lincoln’s defenders argued that the provision doesn’t spell out who has the power to suspend habeas corpus. They also argued that it was clearly intended as an emergency measure and that the founding fathers could not have meant for it to be used only when Congress was in session.

Constitutional or not, Lincoln’s suspension of habeas corpus was used by the military to detain more than 13,000 citizens during the Civil War.

George W. Bush was the only other president to revoke habeas corpus, although he did it with the backing of Congress when he signed the Military Commissions Act of 2006. And while Lincoln’s order applied to U.S. citizens, the law signed by President Bush applied only to aliens who were deemed “enemy combatants.”

Westlaw users: Read Chief Justice Taney’s ruling in Ex parte Merryman (17 Fed.Cas. 144) on Westlaw. (Sign-on required)

Westlaw tip: Did you ever wish you had the ability to resend a print request? You do in Westlaw. Just click on the “Site Map” link at the top of the screen, look in the right column for “Tools”, then click on “Print/Delivery Manager.” Simply check the box next to the desired document, hit the Print or Email button, and your document is on its way!

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Silence was never written down. – Italian proverb

Sometimes silence is not golden, it’s just yellow! – Uncle Anthony

The tenants were a New York City couple with plans to buy their own condo. They gave notice that they planned to move out of their apartment by August 31, which coincided the end of their lease term.

So far, so good. But as any homeowner knows, an alarming array of problems can arise between offer acceptance and closing, and sure enough, the hopeful homeowners’ closing date was pushed back. They asked the landlord if they could continue renting through September, and the landlord reluctantly agreed.

The real-estate delays continued. In mid-September, one of the tenants talked to the landlord’s wife on the phone. The tenant hinted at the creeping likelihood that the couple would need a place to stay beyond September, but she did not ask explicitly for another extension.

The couple ended up staying until December 23, but the landlord refused to cash their rent checks after September, instead opting to file for a holdover proceeding to force them out.

What the headnote refers to is the tenants’ silence regarding their intent to remain in the apartment beyond the agreed-on one-month extension. Their failure to speak misled the landlord, according to the judge, and effectively signified that they would abide by the terms of the oral agreement.

A two-for-one lesson here: If you want it, ask for it… and then get it in writing.

Curious about the case? Westlaw users can view the judgment in Palumbo v. Donalds (754 N.Y.S.2d 856) on Westlaw. (Requires sign-on)

Curious about the quotations? Both of the quotes at the very top of this post can be found in Uncle Anthony’s Unabridged Analogies: Quotes & Proverbs for Lawyers and Lecturers, which is available at a 10% discount to all Westlaw Insider readers – including the talkative ones.

Nat’l Fed’n of the Blind v. Target Corp. (N.D. Cal.)
Target agrees to pay $6M, modify Web site for blind users

2009 WL 792370 Settlement Summary
2005 WL 5352866 Accessibility Assessment by Plaintiff’s Expert Jim Thatcher, PhD

Note: The links above are intended for Westlaw users. You will be asked to sign on to Westlaw before being taken directly to the document.

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