September 15, 1863---"We have the body . . ." . . . and we're keeping it!

SEPTEMBER 15, 1863: 

 

Despite Justice Taney’s holding as a Circuit Judge in Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487) in 1861, and despite accusations of Constitutional manipulation from Peace Democrats, throughout the course of the Civil War, President Lincoln has been suspending the Writ of Habeas Corpus in local areas and parts of States according to circumstance. Today he issues Presidential Proclamation Number 104, which suspends t5he Writ throughout the United States until further notice.

Despite what his critics (contemporary and modern) say, the suspension of Habeas Corpus is a right granted by the Constitution in the Suspension Clause, located in Article One, Section 9. This clause states that "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."

It is, however, unclear as to whether the Congress has sole authority to suspend the Writ, whether the President as Commander-in-Chief may do so unilaterally, or if there must be advise and consent between those two branches of government.

In subsequent habeas corpus cases, the Supreme Court has referenced Ex Parte Merryman, denying Presidential authority to act alone; however, the case never made it to the Supreme Court and the issue is still unsettled under law.

Proclamation Number 104 reads:

By the President of the United States of America

A Proclamation

Whereas the Constitution of the United States has ordained that 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; and

Whereas a rebellion was existing on the 3d day of March, 1863, which rebellion is still existing; and

Whereas by a statute which was approved on that day it was enacted by the Senate and House of Representatives of the United States in Congress assembled that during the present insurrection the President of the United States, whenever in his judgment the public safety may require, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States or any part thereof; and

Whereas, in the judgment of the President, the public safety does require that the privilege of the said writ shall now be suspended throughout the United States in the cases where, by the authority of the President of the United States, military, naval, and civil officers of the United States, or any of them, hold persons under their command or in their custody, either as prisoners of war, spies, or aiders or abettors of the enemy, or officers, soldiers, or seamen enrolled or drafted or mustered or enlisted in or belonging to the land or naval forces of the United States, or as deserters therefrom, or otherwise amenable to military law or the rules and articles of war or the rules or regulations prescribed for the military or naval services by authority of the President of the United States. or for resisting a draft, or for any other offense against the military or naval service:

Now, therefore, I, Abraham Lincoln, President of the United States, do hereby proclaim and make known to all whom it may concern that the privilege of the writ of habeas corpus is suspended throughout the United States in the several cases before mentioned, and that this suspension will continue throughout the duration of the said rebellion or until this proclamation shall, by a subsequent one to be issued by the President of the United States, be modified or revoked. And I do hereby require all magistrates, attorneys, and other civil officers within the United States and all officers and others in the military and naval services of the United States to take distinct notice of this suspension and to give it full effect, and all citizens of the United States to conduct and govern themselves accordingly and in conformity with the Constitution of the United States and the laws of Congress in such case made and provided.

In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed this 15th day of September, A.D. 1863, and of the Independence of the United States of America the eighty-eighth.

ABRAHAM LINCOLN.

By the President:

WILLIAM H. SEWARD, Secretary of State .