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LINCOLN'S SUSPENSION OF HABEAS CORPUS.

INTRODUCTION.

2

The suspension of the privilege of the writ of habeas corpus by President Lincoln in 1861 gave rise to a considerable mass of pamphlets, periodical articles and more ephemeral writings, and to a large number of legal decisions. In these, considerations of law, history and expediency are marshalled in the main against but to some extent for the claim of the President to suspend under the Constitution. A careful working-over of this material led the writer to the conclusion that the Gordian knots of habeas corpus suspension in the United States is extremely difficult if not impossible to untie. Further investigation led to the belief that a detailed historical exposition of the attitude of Congress toward Lincoln's suspension of the privilege of the writ would not only cast light upon the psychology of Congress in war-time, but might show that the knot was cut while the pamphleteers were still

at work.

The only possible federal depositories of the power to suspend are Congress and the President. Until 1861 the view that Congress alone could suspend was generally accepted, or

1 See list of pamphlets, etc., appended to S. G. Fisher's The Suspension of Habeas Corpus during the War of the Rebellion, in Political Science Quarterly, vol. III, pp. 485-488; Democratic State Platforms, 1861, 1862; Congressional Globe, 37th Congress, passim.

2 See Law Digests sub Habeas Corpus.

Cf. Lieber to Sumner, January 8, 1863: "Every one who maintains that it can be proved with absolute certainty that the framers of the Constitution meant that Congress alone should have the power [to suspend the privilege of the writ] is in error It cannot mathematically be proved from the Constitution itself, or from analogy which does not exist, or from the debates, or history." Life and Letters of Francis Lieber, ed. by Perry, 1882, pp. 328-329.

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The University of Chicago

FOUNDED BY JOHN D. ROCKEFELLER

458.8 .S47

LINCOLN'S SUSPENSION OF HABEAS CORPUS

AS VIEWED BY CONGRESS

A DISSERTATION

SUBMITTED TO THE FACULTY OF THE GRADUATE SCHOOL OF ARTS AND LITERA-
TURE IN CANDIDACY FOR THE DEGREE OF DOCTOR OF PHILOSOPHY

(DEPARTMENT OF HISTORY)

BY

GEORGE CLARKE SELLERY

(Reprinted from the Bulletin of the University of Wisconsin
History Series, Vol. I, No. 3)

MADISON, WISCONSIN

1907

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