Select Statutes and Other Documents: Illustrative of the History of the United States, 1861-1898

By William MacDonald | Go to book overview

No. 32. Act relating to Habeas Corpus
March 3, 1863

APRIL 27, 1861, Lincoln by executive order authorized General Scott, in his discretion, to suspend the privilege of the writ of habeas corpus on any military line between Philadelphia and Washington. July 2 this authorization was extended to the military line between New York and Washington. A proclamation of May 10 authorized suspension in the islands of Key West, the Tortugas, and Santa Rosa. Doubt as to the legality of these executive orders, however, reënforced by public criticism of the numerous arrests of civilians in pursuance of them, led to the issue, February 14, 1862, of an order directing the release of political prisoners held in military custody, "on their subscribing to a parole engaging them to render no aid or comfort to the enemies in hostility to the United States"; but a proclamation of September 24 declared all disloyal persons subject to martial law, and suspended the privilege of the writ as to such persons. An act of August 6, 1861, had in the meantime validated all the acts, proclamations, and orders of the President, relating to military affairs, issued since the 4th of March preceding. A bill "to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof," was introduced in the House, December 8, 1862, by Thaddeus Stevens, and passed the same day, notwithstanding strong opposition, by a vote of 91 to 46. On the 22d a protest against the bill, signed by thirty-six members of the House, was, by a vote of 75 to 40, refused entry on the journal. The bill was reported with amendments in the Senate January 15, 1863, and passed that body on the 27th, after long discussion, by a vote of 33 to 7. The House, by a vote of 35 to 114, refused to agree to the Senate amendments, and the bill received its final form from a conference committee, the Senate receding from its amendments and accepting a modified form of the House bill. A proclamation of September 15, under the act, declared a general suspension of the privilege of the writ throughout the United States; this was revoked as to the loyal States December 1, 1865. An amendatory act was passed May 11, 1866.

REFERENCES. -- Text in U.S. Statutes at Large, XII, 755-758. For the proceedings see the House and Senate Journals, 37th Cong., 3d Sess., and the Cong. Globe. The Pendleton protest is in the Globe, December 22; the Senate amendments, ibid., February 19, House proceedings. Numerous orders, reports, letters, etc., are collected in McPherson, Rebellion, 152-194; see also House Exec. Doc. 6, 37th Cong., 1st Sess., and Senate Exec. Doc. 11, 37th Cong., 3d Sess. For Taney's opinion, 1861, against the right of the President to suspend, see Ex parte Merryman, Taney's Reports, 246; cf. Tyler, Taney, chap. 6. The opinion of Bates affirming the right is in HouseExec. Doc. 5

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