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NO. 149

HISTORY SERIES, VOL. 1, No. 3, PP. 213-286

LINCOLN'S SUSPENSION OF HABEAS CORPUS

AS VIEWED BY CONGRESS

BY

GEORGE CLARKE SELLERY
Assistant Professor of History in the University of Wisconsin.

Published bi-monthly by authority of law with the approval of the Regents

of the University and entered at the post ofice at

Madison as second-class matter

MADISON, WISCONSIN

APRIL, 1907

TABLE OF CONTENTS.

INTRODUCTION

PAGE 217

CHAPTER 1-The Habeas CORPUS PROBLEM.

The early suspensions of the privilege of the writ.....
The President's submission of the suspensions to Congress

219 221

CHAPTER II–THE INACTION OF THE Extra SESSION.

Senator Henry Wilson's "Bill No. 1” of July 4, 1861...
The substituted joint resolution of July 6.
Habeas corpus features of the resolution..
The ambiguity of the last clause of the resolution
Probable explanation of the ambiguity ...
The Senate's loss of interest in the resolution after July 10....
Senate Bill No. 33 of July 17 .....
The failure of the bill, August 2..
The failure of the joint resolution
Reasons for the failure of the resolution
Significance of the failure ....

223 225 227 228 229 231 232 233 234 236 237

CHAPTER III-THE INACTION OF THE SECOND SESSION,

Habeas corpus material of the session
House Bill No. 362 as amended July 7, 1862
The ambiguity of the third section of the bill.
Passage of the bill through the House
The Senate's appreciation of the ambiguity of the third section

of the bill......
Failure of the bill in the Senate

239 240 240 242

242 245

CHAPTER IV-THE ACTION OF THE THIRD SESSION.

Opinion that it was too late for Congress to assert exclusive

jurisdiction over suspension
Stevens's House Bill No. 591 of December 8, 1863..
It was not a condemnation of suspension by the President.
Swift passage of the bill through the House

246 247 249 251

LINCOLN'S SUSPENSION OF HABEAS CORPUS.

INTRODUCTION.

1

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, and to a large number of legal decisions. 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 knotof 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

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; Congressionat Glode, 37th Congress, passim.

? See Law Digests sub Habeas Corpus.

3 C1. Lieber to Sumner, January 8, 1863 : "Every one who maintains that it can be 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.

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