Cabinet Discusses Habeas Corpus

September 15, 1863

For the second day in a row, the Lincoln Cabinet meets to discuss President Lincoln’s proposed order regarding the military draft. Three Cabinet members write about the day’s cabinet meeting – which began with the reading of the president’s draft order regarding suspension of habeas corpus.  Treasury Secretary Salmon P. Chase writes in his diary:  “Most all the Heads of the Departments having come in, the President read his order.  It was a direction to the military officers holding persons in custody as soldiers, deserters or drafted men, to make return to the Writ of Habeas Corpus from any Court, that the principal in the Writ was so held and refuse obedience; and that if force should be used to compel obedience, to overcome it.  After the order was read, the Secretary of War made a statement showing the great number of persons discharged by Habeas Corpus principally by the two Federal Judges Cadwalader and McCandless, and stated some very gross proceedings under color of judicial authority, manifestly intended to interfere with the recruiting and maintenance of the Army.  The President remarked that the order he had read was the same he had proposed yesterday, only modified so as to apply to Federal as well as to State courts.  I then remarked: ‘This is an important matter.  The statement made by the Secretary of War clearly shows a design to defeat the measures which Congress and the Executive have thought necessary to maintain the Army.  The only question then is, in what mode should this at tempt be met.  You, Mr. President, have believed that you have the power to suspend the write of Habeas Corpus without being authorized by Congress, and in some cases have acted on this belief.  After much consideration I have come to the conclusion that your opinion and action are sanctioned by the Constitution.  Whatever doubt there may have been as to your power to suspend the Write, it has been removed by express legislation.  The act of the 3d March last, approved by you, authorizes you to suspend the Write in any case during the existing rebellion when in your judgment the public safety may require it.  The order you have just read does not suspend the Write in terms, though it probably, with the disadvantage on the side of the Federal authority.  In my judgment, therefore, instead of this order there should be a Proclamation distinctly suspending the Writ of Habeas Corpus so far as may be necessary to prevent the great evil of virtually disbanding the Army, and when once issued any attempt to interfere with the organization should be punished under the Act of Congress promptly and decisively, no matter who the offender may be, whether Governor or Judge, or any less conspicuous personage.  By this bold and direct action, I think you will command the confidence of the public, avoid collisions upon uncertain grounds, and secure most completely the great objects you have in view.  This I said in substance.  The President seemed to be struck with the force of it; took the law to which I had referred, and came to the conclusion that the best move was to issue a Proclamation under it, suspending the Write.  Some conversation then took place as to the proper return to be made by the officer to whom the Write was addressed.  As this matter, however, seemed to be sufficiently provided for by law, the subject was not pursued.  I was surprised to find that in a matter of this importance, no one but myself seemed to have read the Act of March 3d with reference to the subject under discussion, and that its provisions were unfamiliar to all.

Navy Secretary Gideon Welles writes: “The President read the paper which he had drawn up.  Mr. Chase proposed as a preferable course that the President should, pursuant to the act of the 3rd of March last, suspend by proclamation the privilege of the writ of habeas corpus on military questions.  This proposition, after discussion, met with favor from all, and the Council adjourned to 1 P.m. for Mr. Seward to prepare a proclamation.  ON meeting at one o’clock, the draft which Mr. Seward had prepared was criticized and after some modifications was ordered to be recopied and carried into effect.  All came into the arrangement cordially after Stanton rad the reports of sundry provost marshals and other detailing the schemes practiced for defeating the draft.

The question is raised whether the executive can suspend the privilege of the write of habeas corpus without Congressional action.  If the executive can suspend in the cases specified, which is generally admitted, the policy of falling back on the act of the 3d of March last is more than questionable, for if Congress has, as claimed, the exclusive right, can it delegate away that right?  If the right is in the Executive, it is not wise nor proper to place the proclamation on the delegated grant in the law of last March which is made the basis of the proclamation.  I think I am not mistaken in my impression that Mr. Chase is one of those who has claimed that the President had the constitutional right to suspend the privilege of this writ, yet he was to-day sensitive beyond all others in regard to it and proposed relying on the act of Congress instead of the constitutional Executive authority a civil war if the Free States would be inevitable; fears popular tumult, would not offend Congress, etc.  I have none of his apprehensions, and if it is the duty of the President, would not permit legislative aggression, but maintain the prerogative of the Executive.

Attorney General Edward Bates writes in his diary: “Again C.C. met, and, after some consultation, the result was that an order was to be issued to refuse obedance [sic] to the writ, and protect the officer refusing – Also to issue a proclamation suspending the privilege of the writ of Hab Corp: in such cases, under the act of Congress of Mar. 3. 1863.”

President Lincoln writes General-in-chief Henry W. Halleck: “If I did not misunderstand Gen. Meade’s last despatch, he posts you on facts as well as he can, and desires your views and those of the government, as to what he shall do. My opinion is that he should move upon Lee at once in manner of general attack, leaving to developments, whether he will make it a real attack. I think this would develop Lee’s real condition and purposes better than the cavalry alone can do. Of course my opinion is not to control you and Gen. Mead

President Lincoln writes Maine Republican chairman James G. Blaine: “Thanks both for the good news you send, and for the sending of it.”  Blaine wired: “Maine sustains your administration by a majority of 15000.”

President Lincoln writes to Jesse K. Dubois and Ozias M. Hatch: “What nation do you desire Gen. Allen to be made Quarter-Master-General of? This nation already has a Quarter-Master-General.”

President Lincoln issues “Proclamation Suspending Writ of Habeas Corpus”: “Whereas the Constitution of the United States has ordained that the privilege of the Writ of Habeas Corpus shall not be suspended unless when in cases or rebellion or invasion the public safety may require it, And whereas a rebellion was existing on the third day of March, 1863, which rebellion is still existing; and whereas by a statute which was approved on that day, it was enacted by the Senate and House of Representatives of the United States in Congress assembled, that, during the present insurrection, the President of the United States, whenever, in his judgment, the Public safety may require, is authorized to suspend the privilege of the Writ of Habeas Corpus in any case throughout the United States or any part thereof; and whereas in the judgment of the President the public safety does require that the privilege of the said writ shall now be suspended throughout the United States in the cases where, by the authority of the President of the United States, military, naval and civil officers of the United States or any of them hold persons under their command or in their custody either as prisoners of war, spies, or aiders or abettors of the enemy; or officers, soldiers or seamen enrolled or drafted or mustered or enlisted in or belonging to the land or naval forces of the United States or as deserters therefrom or otherwise amenable to military law, or the Rules and Articles of War or the rules or regulations prescribed for the military or naval services by authority of the President of the United States or for resisting a draft or for any other offence against the military or naval service. Now, therefore, I, Abraham Lincoln, President of the United States, do hereby proclaim and make known to all whom it may concern, that the privilege of the Writ of Habeas Corpus is suspended throughout the United States in the several cases before mentioned, and that this suspension will continue throughout the duration of the said rebellion, or until this proclamation shall, by a subsequent one to be issued by the President of the United States, be modified or revoked. And I do hereby require all magistrates, attorneys and other civil officers within the United States, and all officers and others in the military and naval services of the United States, to take distinct notice of this suspension, and to give it full effect, and all citizens of the United States to conduct and govern themselves accordingly and in conformity with the Constitution of the United States and the laws of Congress in such case made and provided.”

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Published in: on September 15, 2013 at 9:00 am  Leave a Comment  

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