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 .
