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 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..... 219 221 CHAPTER II–THE INACTION OF THE Extra SESSION. Senator Henry Wilson's "Bill No. 1” of July 4, 1861... 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 of the bill...... 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 246 247 249 251 CHAPTER IV.—THE ACTION OF THE THIRD SESSION --continued. The Senate's substitute for House Bill No. 591 It did not reflect upon the legitimacy of suspension by the Pres- Its passage through the Senate The Senate's substitute for House Bill No. 362 The ambiguity of the substitute; its enactment that the Presi- dent is authorized to suspend...... Doolittle's explanation of the "is authorized” The passage of the substitute by the Senate The House's refusal to coucur and the appointment of a com- Congress recognized the President's right to suspend....... Congress nevertheless asserted its right to assume control ..... 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. |