LINCOLN, Abraham. Partly printed document boldly signed ("Abraham Lincoln") as President, his order to affix the seal of the United States to THE PROCLAMATION TO SUSPEND THE WRIT OF HABEAS CORPUS, Washington, D.C., 24 September 1862. 1 page, 4to (9 7/8 x 7 5/16 in.), browning, small repair to top right corner with small loss, three small punch holes in left margin.
SUSPENDING THE WRIT OF HABEAS CORPUS: LINCOLN EVOKES THE WARTIME POWERS OF THE EXECUTIVE TO SUPPRESS TREASON ON THE HOMEFRONT
An order to affix the Great seal of the United States to "my Proclamation," one of Lincoln's most critical and controversial wartime measures. Confronting and defeating domestic treason was a considerable challenge to the Lincoln administration. Lincoln's Secretary of State believed that intrigue, sabotage and sedition was widespread: "Convinced that treason lurked everywhere, in every bureau, post office, customs house, regiment, and ship of war, Seward took extraordinary steps to root out subversives" (Oates, With Malice Toward None, p. 254). Lincoln believed that many of the arrests were based upon unsubstantiated evidence, and insisted that "unless the necessity for these arbitrary arrests is manifest, and urgent, I prefer they should cease."
As a lawyer, Lincoln was deeply troubled about the legality of seizing and holding citizens without just cause and without the promise of a proper trial as prescribed by the Writ of Habeas Corpus. Based upon traditions rooted in the Middle Ages, the Writ assured that no person could be detained unless charged in court with a specific crime. This fundamental guarantee of Civil Rights was protected in Section 9, Article 1 of the Constitution which stipulated: "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."
Certainly, the Civil War fulfilled the Constitutional condition for the suspension of the Writ, but what branch of the government had the power to suspend it? On this, the Constitution was silent. Lincoln, who did not hesitate to utilize an extension of executive power to successfully wage the war, questioned Presidential authority to suspend the Writ, and queried the Attorney General, Edward Bates: "1. In the present time of great and dangerous insurrection, has the President the discretionary power to cause to be arrested persons known to have criminal intercourse with the insurgents? 2. In such cases of arrest, is the President justified in refusing to obey a writ of habeas corpus issued by a court or judge, requiring him to produce the body of the prisoner?" Bates responded with certainty: "The power to do those things is in the hands of the President, placed there by the Constitution...And for any breach of trust he is responsible before the high court of impeachment, and before no other human tribunal" (Macartney, Lincoln and his Cabinet, p. 72).
Chief Justice Roger Taney (who had written the majority opinion in the Dred Scott case) disagreed, advising that suspension of the Writ was a Congressional power and reminding Lincoln that he would be violating the very laws that he had been elected to uphold. In his Message to Congress in Special Session on 4 July 1861, Lincoln countered: "Are all the laws, but one? to go unexecuted, and the government itself go to pieces, lest that one be violated?" (Basler 4:430). During the first year of the war, Lincoln only resorted to a suspension of the writ in limited areas. But when conscription was introdoced in the summer of 1862, under the Militia Act and resistance to it appeared certain, Lincoln was forced to consider imposing a blanket national decree. On August 8 the War Department gave military officers, U. S. marshals and police authorities the power to suspend the writ in cases where men resisted or avoided the draft. The suspension was applied nationally, and laid the foundation for the Lincoln's unprecendented September proclamation.
Lincoln kept his intention to issue the proclamation to suspend the writ a secret from his cabinet. Having presented his thoughts upon an emancipation proclamation to his cabinet earlier in the summer and submitted the final draft to them on September 22, Lincoln perhaps chose not to overshadow its importance by debate on the suspension of the writ. Most of the cabinet became aware of the Proclamation to suspend Habeas Corpus only after it was issued on the 24th. Gideon Welles, the Secretary of the Navy, expressed concerns that must have echoed the thoughts of others: "I question the wisdom or utility of a multiplicity of proclamations striking deep on great questions." (Neely, The Fate of Liberty, p. 51)
The proclamation asserted that "it has become necessary to call into service not only volunteers but also portions of the militia of the States by draft in order to suppress the insurrection existing in the United States," and that "disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure and from giving aid and comfort in various ways to the insurrection. Accordingly, "during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practise, affording aid and comfort to Rebels against the authority of the United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission." The second clause stipulated that "the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority or by the sentence of any Court Martial or Military Commission." (Basler 5:436-437).
The suspension of Habeas Corpus was quickly branded as an abuse of executive power and a violation of a citizen's basic rights under the Constitution. Historian Mark Neely, Jr., notes that "The suspension was unprecedented, like the Civil War itself," and a good many of the arrests were clearly arbitrary (Neely, p. xiii, chapter 3). Lincoln, though, remained convinced that the measure was justified by the drastic threat to the nation's very survival: "Lincoln steadfastly defended such an invasion of civil liberties, contending that strict measures were imperative if the laws of the Union--and liberty itself--were to survive this 'clear, flagrant, and gigantic case of Rebellion'" (Oates, p. 254).