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Lincoln's Suspension of Habeas Corpus as Viewed by Congress/Introduction

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Lincoln's Suspension of Habeas Corpus as Viewed by Congress
by George Clarke Sellery
Introduction
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481068Lincoln's Suspension of Habeas Corpus as Viewed by Congress — IntroductionGeorge Clarke Sellery
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LINCOLN'S SUSPENSION OF HABEAS CORPUS.


INTRODUCTION.

The suspension of the privilege of the writ of habeas corpus by President Lincoln in 1861 gave rise to a considerable mass of pamphlets, periodical articles and more ephemeral writings,[1] and to a large number of legal decisions.[2] In these, considerations of law, history and expediency are marshalled in the main against but to some extent for the claim of the President to suspend under the Constitution. A careful working-over of this material led the writer to the conclusion that the Gordian knot[3] of habeas corpus suspension in the United States is extremely difficult if not impossible to untie. Further investigation led to the belief that a detailed historical exposition of the attitude of Congress toward Lincoln's suspension of the privilege of the writ would not only cast light upon the psychology of Congress in war-time, but might show that the knot was cut while the pamphleteers were still at work.

The only possible federal depositories of the power to suspend are Congress and the President. Until 1861 the view that Congress alone could suspend was generally accepted, or ​at least was nowhere controverted.[4] The President's action in 1861 was a practical denial of the correctness of this view. The stand which Congress took on this seeming encroachment upon its hitherto unquestioned jurisdiction manifestly merits careful examination. If Congress acquiesced in Presidential suspension, if, as this essay attempts to demonstrate, it conceded the President's right under the given circumstances to suspend, the historical precedent thus established must be given great weight. It is true that the conditions of the time were abnormal, and true that "acts committed in time of war, under the pressure of necessity and self-preservation, are not likely to ripen into precedents for times of peace."[5] But federal suspension of the privilege of the writ of habeas corpus cannot constitutionally occur in time of peace; it is a proceeding which, fortunately for the people of the United States, can be resorted to only in most abnormal times. The importance of the decision of Congress in 1861–1863 upon the question of the President's right to suspend is therefore not weakened by the conditions under which the decision was rendered.

Notes

  1. ↑ See list of pamphlets, etc., appended to S. G. Fisher's The Suspension of Habeas Corpus during the War of the Rebellion, in Political Science Quarterly, vol. III, pp. 485–488; Democratic State Platforms, 1861, 1862; Congressional Globe, 37th Congress, passim.
  2. ↑ See Law Digests sub Habeas Corpus.
  3. ↑ Cf. Lieber to Sumner, January 8, 1863: "Every one who maintains that it can he proved with absolute certainty that the framers of the Constitution meant that Congress alone should have the power [to suspend the privilege of the writ] . . . is in error . . . It cannot mathematically be proved from the Constitution itself, or from analogy which does not exist, or from the debates, or history." Life and Letters of Francis Lieber, ed. by Perry, 1882, pp. 328–329.
  4. ↑ "I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands that the privilege of the Writ could not be suspended, except by act of Congress." Taney, C. J., in ex parte Merryman, Taney's Circuit Court Decisions, p. 255.

    "The better opinion . . . among judges and lawyers and constitutional commentators, surely is that the writ of habeas corpus was never intended by the Constitution to be suspended except in pursuance of an act of Congress. The courts have so held, judges have so stated, commentators have so written, and not a commentator can be found, who has written on the Constitution before this rebellion, who ever disputed that proposition. There is great diversity of opinion in the country now." Trumbull, in the Senate, December 9, 1862. Globe, 3d. S. 37th Cong. p. 31.

  5. ↑ Lyman Tremain in N. Y. Daily Tribune, September 11, 1861.
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