The confederacy was more meticulous in its compliance with its Constittution, but the suspensions provoked controversy on both sides.
President Abraham Lincoln ordered suspension of habeas corpus shortly after Fort Sumter, when Washington, D.C., was surrounded by hostile or potentially hostile territory. President Jefferson Davis suspended the writ in 1862 and 1864, when treasonable activity threatened the existence of the Confederacy.
A writ of habeas corpus requires a judicial hearing before a suspected offender can be detained. Federal and Confederate constitutions, in identical wording, both permit the suspension of habeas corpus "when in case of rebellion or invasion the public safety may require it.”
On April 27, 1861, Lincoln suspended habeas corpus wherever necessary in the area between Philadelphia and Washington. He was faced with a critical situation. On Washington’s south and west was Virginia, now part of the Confederate States of America. To the north and east lay Maryland, a border state with a pro-South government. Rioting in Baltimore had impeded the movement of troops from northern states into the capital. Congress was not in session.
Chief Justice Rules Against Lincoln
Chief Justice Roger Taney, who had figured in the infamous Dred Scott Decision, ruled that Lincoln did not have the authority to suspend habeas corpus; only Congress could do so.
Both constitutions provided that habeas corpus “shall not be suspended” except in cases of dire emergency. Neither specified who had the power to suspend it under those circumstances, but each placed the provision in Article I, which deals with Congress, and not in Article II, which deals with the presidency. Constitutional scholars generally supported Taney’s view.
Lincoln maintained that Congress could not be called into session soon enough to meet the emergency, and that without presidential action, the capital could fall, and with it the Union.
“Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated?” he asked.
Jefferson’s Reasoning
His reasoning was similar to that of Thomas Jefferson, who was dubious about his constitutional authority to buy the Louisiana Territory from France, but knew that unless he acted quickly the opportunity might be lost.
“A strict observance of the written laws is doubtless one of the highest duties of a good citizen, but it is not the highest,” he stated. “To lose our country by a scrupulous adherence to written law, would be to lose the law itself. . .”
Congress Approved, Stephens Condemned
Congress, when it did convene, gave Lincoln most of the authority he asked for, including the power to suspend habeas corpus. Many contend that his subordinates exercised the power beyond the areas immediately threatened by war.
Jefferson Davis was not confronted with the immediate urgency that confronted Lincoln, so he could dot the constitutional I’s and cross the T’s. He asked the Confederate Congress for power to suspend habeas corpus, and it was granted. Nevertheless, he encountered the bitter opposition of his vice president, Alexander H. Stephens, who went home to Georgia in 1863 and warned about the drift toward dictatorship.
Lincoln enjoyed the support of top leaders in his administration, although the Democratic opposition accused him of violating the Constitution.
Sources:
Daniel Farber, Lincoln’s Constitution, The University of Chicago Press, 2003; Dumas Malone, Jefferson and His Time (Vol. 4, Jefferson the President, First Term), Little, Brown and Company, 1970; The Annals of America (Vol. 9, The Crisis of the Union), Encyclopedia Britannica, Inc., 1976.
Gene Owens - Gene Owens is a veteran of more than 50 years of newspaper writing. At his retirement in 2003 from the Press-Register in Mobile, Ala., the ...
