Habeas Corpus Suspension Act (1863)

The Habeas Corpus Suspension Act, (1863), entitled An Act relating to Habeas Corpus, and regulating Judicial Proceedings in Certain Cases, was an Act of Congress that authorized the President of the United States to suspend the right of habeas corpus in response to the American Civil War and provided for the release of political prisoners. It began in the House of Representatives as an indemnity bill, introduced on December 5, 1862, releasing the President and his subordinates from any liability for having suspended habeas corpus without congressional approval. The Senate amended the House's bill, and the compromise reported out of the conference committee altered it to qualify the indemnity and to suspend habeas corpus on Congress's own authority. Abraham Lincoln signed the bill into law on March 3, 1863, and suspended habeas corpus under the authority it granted him six months later. The suspension was partially lifted with the issuance of Proclamation 148 by Andrew Johnson, and the Act became inoperative with the end of the Civil War. The exceptions to Johnson's Proclamation 148 were the States of Virginia, Kentucky, Tennessee, North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana, Arkansas, and Texas, the District of Columbia, and the Territories of New Mexico and Arizona.

Background At the outbreak of the American Civil War in April 1861, Washington, D.C., was largely undefended, rioters in Baltimore, Maryland threatened to disrupt the reinforcement of the capital by rail, and Congress was not in session. The military situation made it dangerous to call Congress into session. In that same month (April 1861), Abraham Lincoln, the President of the United States, therefore authorized his military commanders to suspend the writ of habeas corpus between Washington, D.C., and Philadelphia (and later up through New York City). Numerous individuals were arrested, including John Merryman and a number of Baltimore police commissioners; the administration of justice in Baltimore was carried out through military officials. When Judge William Fell Giles of the United States District Court for the District of Maryland issued a writ of habeas corpus, the commander of Fort McHenry, Major W. W. Morris, wrote in reply, "At the date of issuing your writ, and for two weeks previous, the city in which you live, and where your court has been held, was entirely under the control of revolutionary authorities."Benson John Lossing (1866), Pictorial Field Book of the Civil War, 1997 reprint, Baltimore: Johns Hopkins, Vol. I, Ch. XVIII, "The Capital Secured—Maryland Secessionists Subdued—Contributions by the People", pp. 449–450.

Merryman's lawyers appealed, and in early June 1861, U.S. Supreme Court Chief Justice Roger Taney, writing as the United States Circuit Court for Maryland, ruled in ex parte Merryman that Article I, section 9 of the United States Constitution reserves to Congress the power to suspend habeas corpus and thus that the President's suspension was invalid. The rest of the Supreme Court had nothing to do with Merryman, and the other two Justices from the South, John Catron and James Moore Wayne, acted as Unionists; for instance, Catron's charge to a Saint Louis grand jury, saying that armed resistance to the federal government was treason, was quoted in the New York Tribune of July 14, 1861.Don E. Fehrenbacher (1978), The Dred Scott Case: Its Significance in American Law and Politics, 2001 reprint, New York: Oxford, Part 3, "Consequences and Echoes", Ch. 23, "In the Stream of History", p. 574, and p. 715, n. 16, . The President's advisers said the circuit court's ruling was invalid and it was ignored.William H. Rehnquist, All the Laws But One, 26–39.

When Congress was called into special session, July 4, 1861, President Lincoln issued a message to both houses defending his various actions, including the suspension of the writ of habeas corpus, arguing that it was both necessary and constitutional for him to have suspended it without Congress.Congressional Globe, Thirty-Seventh Congress, First Session, Appendix (1861), pp. 1–4.Doris Goodwin, Team of Rivals (New York: Simon & Schuster, 2006), 355. Early in the session, Senator Henry Wilson introduced a joint resolution "to approve and confirm certain acts of the President of the United States, for suppressing insurrection and rebellion", including the suspension of habeas corpus (S. No. 1).George Clarke Sellery, Lincoln's suspension of habeas corpus as viewed by Congress (Ph.D. dissertation, University of Wisconsin—Madison, 1907), 11–26. Senator Lyman Trumbull, the Republican chairman of the Senate Committee on the Judiciary, had reservations about its imprecise wording, so the resolution, also opposed by anti-war Democrats, was never brought to a vote. On July 17, 1861, Trumbull introduced a bill to suppress insurrection and sedition which included a suspension of the writ of habeas corpus upon Congress's authority (S. 33). That bill was not brought to a vote before Congress ended its first session on August 6, 1861, due to obstruction by Democrats,Congressional Globe, Thirty-Seventh Congress, First Session (1861), pp. 336–343, 364, 372–382.Sellery, Lincoln's Suspension of Habeas Corpus, 19–22.George Clarke Sellery, Lincoln's suspension of habeas corpus as viewed by Congress (Ph.D. dissertation, University of Wisconsin—Madison, 1907), 11–26. and on July 11, 1862, the Senate Committee on the Judiciary recommended that it not be passed during the second session, either,Congressional Globe, Thirty-Seventh Congress, Second Session (1861–62), pp. 115, 409, 3245. but its proposed habeas corpus suspension section formed the basis of the Habeas Corpus Suspension Act.

In September 1861 the arrests continued, including a sitting member of Congress from Maryland, Henry May, along with one third of the Maryland General Assembly, and Lincoln expanded the zone within which the writ was suspended. When Lincoln's dismissal of Justice Taney's ruling was criticized in an editorial that month by a prominent Baltimore newspaper editor Frank Key Howard, Francis Scott Key's grandson and Justice Taney's grand-nephew by marriage, he was himself arrested by federal troops without trial. He was imprisoned in Fort McHenry, which, as he noted, was the same fort where the Star Spangled Banner had been waving "o'er the land of the free" in his grandfather's song.

In early 1862 Lincoln took a step back from the suspension of habeas corpus controversy. On February 14, he ordered all political prisoners released, with some exceptions (such as the aforementioned newspaper editor) and offered them amnesty for past treason or disloyalty, so long as they did not aid the Confederacy. In March 1862 Congressman Henry May, who had been released in December 1861, introduced a bill requiring the federal government to either indict by grand jury or release all other "political prisoners" still held without habeas corpus.Jonathan White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman, LSU Press, 2011. p. 106 May's bill passed the House in summer 1862, and it would later be included in the Habeas Corpus Suspension Act, which would require actual indictments for suspected traitors.White, Abraham Lincoln and Treason in the Civil War: The Trials of John Merryman, p. 107

In September, faced with opposition to his calling up of the militia, Lincoln again suspended habeas corpus, this time through the entire country, and made anyone charged with interfering with the draft, discouraging enlistments, or aiding the Confederacy subject to martial law.Proclamation 94. In the interim, the controversy continued with several calls made for prosecution of those who acted under Lincoln's suspension of habeas corpus; former Secretary of War Simon Cameron had even been arrested in connection with a suit for trespass vi et armis, assault and battery, and false imprisonment. Senator Thomas Holliday Hicks, who had been Governor of Maryland during the crisis, told the Senate, "I believe that arrests and arrests alone saved the State of Maryland not only from greater degradation than she suffered, but from everlasting destruction." He also said, "I approved them [the arrests] then, and I approve them now; and the only thing for which I condemn the Administration in regard to that matter is that they let some of these men out."Bruce Catton (1961), The Coming Fury, 1967 reprint, New York: Pocket Books, Ch, 6, "The Way of Revolution", Sec. 2, "Arrests and Arrests Alone", p. 360, ; Congressional Globe, 37th Congress, Third Session, Part 2, pp. 1372–1373, 1376.

Legislative history

When the Thirty-seventh Congress of the United States opened its third session in December 1862, Representative Thaddeus Stevens introduced a bill "to indemnify the President and other persons for suspending the writ of habeas corpus, and acts done in pursuance thereof" (H.R. 591). This bill passed the House over relatively weak opposition on December 8, 1862.George Clarke Sellery, Lincoln's Suspension of Habeas Corpus, 34–51.Congressional Globe, Thirty-Seventh Congress, Third Session (1862–63), pp. 14, 20–22.

When it came time for the Senate to consider Stevens' indemnity bill, however, the Committee on the Judiciary's amendment substituted an entirely new bill for it. The Senate version referred all suits and prosecutions regarding arrest and imprisonment to the regional federal circuit court with the stipulation that no one acting under the authority of the president could be faulted if "there was reasonable or probable cause", or if they acted "in good faith", until after the adjournment of the next session of Congress.H.R. 951 as amended by the Senate Committee on the Judiciary, sec. 2; see Congressional Globe, Thirty-Seventh Congress, Third Session (1862–63), p. 530. Unlike Stevens' bill, it did not suggest that the president's suspension of habeas corpus upon his own authority had been legal.

The Senate passed its version of the bill on January 28, 1863, and the House took it up in mid-February before voting to send the bill to a conference committee on February 19.Congressional Globe, Thirty-Seventh Congress, Third Session (1862–63), pp. 916, 1036, 1056–1089, 1102–1107. The House appointed Thaddeus Stevens, John Bingham, and George H. Pendleton to the conference committee.Congressional Globe, Thirty-Seventh Congress, Third Session (1862–63), p. 1107. The Senate agreed to a conference the following day and appointed Lyman Trumbull, Jacob Collamer, and Waitman T. Willey.Congressional Globe, Thirty-Seventh Congress, Third Session (1862–63), p. 1119. Stevens, Bingham, Trumbull, and Collamer were all Republicans; Willey was a Unionist; Pendleton was the only Democrat.

On February 27, the conference committee issued its report. The result was an entirely new bill authorizing the explicit suspension of habeas corpus.

In the House, several members left, depriving the chamber of a quorum. The Sergeant-at-Arms was dispatched to compel attendance and several representatives were fined for their absence.Congressional Globe, Thirty-Seventh Congress, Third Session (1862–63), pp. 1354–1359. The following Monday, March 2, the day before the Thirty-seventh Congress had previously voted to adjourn, the House voted to accept the new bill, with 99 members voting in the affirmative and 44 against.Congressional Globe, Thirty-Seventh Congress, Third Session (1862–63), p. 1479.