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LINCOLN, Abraham. Partly printed document signed ("Abraham Lincoln"), as President, Washington, 2 July 1861. An Order to the Secretary of State to Affix the Seal to "my order to the Commanding General of the Army of the U.S. authorizing him to suspend the writ of Habeas Corpus..." 1 page, 4to, text in an elegant copperplate hand, accomplished in manuscript by a State Department clerk.
LINCOLN SUSPENDS THE WRIT OF Habeas Corpus: PERHAPS THE MOST CONTROVERSIAL ACT OF HIS PRESIDENCY
The presidential order hereby made official, suspended the Constitutional ban against arbitrary arrest. Article I, section 9 of the Constitution specifies 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." The charter is vague, however, on who has the power to suspend, Congress or the President. Yet here Lincoln authorizes "the Commanding General of the Army of the United States to suspend the writ of Habeas Corpus on any military line between the City of New York and the City of Washington..." In the early months of the war he suspended the writ in localized cases: on 27 April 1861 along the line of march followed by troops moving from Philadelphia to Washington; on 10 May, off the Florida coast; and on 20 June he suspended it in the case of a single individual, Major William H. Chase, accused of treason.
Republicans as well as Democrats criticized Lincoln for these actions. In the landmark Merryman case, Chief Justice Roger Taney declared Lincoln's suspensions illegal, prompting the President to ask: "are all laws but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?" On 24 September 1862 Lincoln issued another suspension of the writ for all those detained under martial law (also in the Forbes Collection, sold Christie's 27 March 2002, lot 89). Congress tried to help by passing their own Habeas Corpus Act on 3 March 1863, permitting the President to suspend, but it left many issues unresolved (were the military arrests made before 3 March 1863 now invalid?). Soon a new crisis--draft resistance--compelled Lincoln to take further action. The President was enraged that state courts were issuing writs to free imprisoned deserters and in some cases to suspend draft boards. Attorney General Bates remembered the President being "more angry than I ever saw him" when the Cabinet discussed the issue on 14 September. The next day Lincoln issued a blanket suspension of the writ for the duration of the war.
That only reignited the howls of protests from Constitutional purists and Copperheads. Lincoln remained determined. He reiterated his views in a 2 June 1863 open letter to Erastus Corning: "Ours is a case of Rebellion...a clear, flagrant, and gigantic case of rebellion." He cited the cases of "Gen. Robert E. Lee" and other top commanders "now occupying the very highest place in the rebel war service." At the start of the war all "were nearly as well known to be traitors then as now. Unquestionably if we had seized and held them, the insurgent case would be much weaker." Over 13,000 were arrested during the conflict, but Lincoln thought the time would soon come when "I shall be blamed for having made too few arrests rather than too many"(CW, 6:264-265).
LINCOLN SUSPENDS THE WRIT OF Habeas Corpus: PERHAPS THE MOST CONTROVERSIAL ACT OF HIS PRESIDENCY
The presidential order hereby made official, suspended the Constitutional ban against arbitrary arrest. Article I, section 9 of the Constitution specifies 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." The charter is vague, however, on who has the power to suspend, Congress or the President. Yet here Lincoln authorizes "the Commanding General of the Army of the United States to suspend the writ of Habeas Corpus on any military line between the City of New York and the City of Washington..." In the early months of the war he suspended the writ in localized cases: on 27 April 1861 along the line of march followed by troops moving from Philadelphia to Washington; on 10 May, off the Florida coast; and on 20 June he suspended it in the case of a single individual, Major William H. Chase, accused of treason.
Republicans as well as Democrats criticized Lincoln for these actions. In the landmark Merryman case, Chief Justice Roger Taney declared Lincoln's suspensions illegal, prompting the President to ask: "are all laws but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?" On 24 September 1862 Lincoln issued another suspension of the writ for all those detained under martial law (also in the Forbes Collection, sold Christie's 27 March 2002, lot 89). Congress tried to help by passing their own Habeas Corpus Act on 3 March 1863, permitting the President to suspend, but it left many issues unresolved (were the military arrests made before 3 March 1863 now invalid?). Soon a new crisis--draft resistance--compelled Lincoln to take further action. The President was enraged that state courts were issuing writs to free imprisoned deserters and in some cases to suspend draft boards. Attorney General Bates remembered the President being "more angry than I ever saw him" when the Cabinet discussed the issue on 14 September. The next day Lincoln issued a blanket suspension of the writ for the duration of the war.
That only reignited the howls of protests from Constitutional purists and Copperheads. Lincoln remained determined. He reiterated his views in a 2 June 1863 open letter to Erastus Corning: "Ours is a case of Rebellion...a clear, flagrant, and gigantic case of rebellion." He cited the cases of "Gen. Robert E. Lee" and other top commanders "now occupying the very highest place in the rebel war service." At the start of the war all "were nearly as well known to be traitors then as now. Unquestionably if we had seized and held them, the insurgent case would be much weaker." Over 13,000 were arrested during the conflict, but Lincoln thought the time would soon come when "I shall be blamed for having made too few arrests rather than too many"(CW, 6:264-265).