2002] Presidential Authority to Suspend Habeas Corpus 121
protecting the public safety. The same can be said about the October 14,
1861 suspension order that extended the military line to Bangor, Maine,
164
even though no record of disturbances in New England existed to justify
this action.
165
Even more disturbing about this latter suspension is that the
original draft of the proclamation was found in Secretary of War William
H. Seward’s papers, written entirely in his hand.
166
Seward later became Lincoln’s Secretary of State, and Lincoln
appointed Edwin M. Stanton, a “war” Democrat, to be his new Secretary of
War.
167
Lincoln chose Stanton, because northern Democrats could identify
with him, and because he was in favor of prosecuting the war against the
Confederacy.
168
Stanton demonstrated this determination in his August 8,
1862 orders.
169
The first order empowered the Secretary of War rather than
the President as the first official to nationally suspend the writ of habeas
corpus.
170
Such delegation of authority contradicted Taney’s opinion in
Merryman, in which he concluded that the President could not authorize
the suspension through agents or officers, civil or military—independent of
judicial or legislative authority.
171
The second order authorized all U.S.
marshals and police chiefs to “arrest and imprison any person or persons
who may be engaged, by act, speech, or writing, in discouraging volunteer
enlistments, or in any way giving aid and comfort to the enemy, or in any
other disloyal practice against the United States.”
172
On September 24, 1862, Lincoln issued a proclamation activating
portions of the states’ militias to assist the Union with the war.
173
He
ordered that “all persons discouraging volunteer enlistments, resisting
militia drafts, or guilty of any disloyal practice, affording aid and comfort
to Rebels . . . shall be subjected to martial law and liable to trial and
punishment by Courts of Martial or Military Commission.”
174
He then
suspended the writ of habeas corpus “in respect to all persons arrested, or
164
See
Lincoln, 4 C
OLLECTED
W
ORKS
,
supra
note 60, at 554.
165
See
R
EHNQUIST
,
supra
note 50, at 48.
166
Id. William Seward reportedly remarked to the British Minister, “My Lord, I can touch a bell
on my right hand and order the imprisonment of a citizen of Ohio; I can touch a bell again and order the
imprisonment of a citizen of New York; and no power on earth, except that of a President, can release
them. Can the Queen of England do so much?” S
CHLESINGER
,
supra
note 10, at 58–59.
167
See R
EHNQUIST
, supra note 50, at 57.
168
See id.
169
Professor Neely notes, “[T]he orders of August 8 had [a] momentous effect on civil liberties in
the United States. The brief period of sweeping and uncoordinated arrests that followed their issuance
constituted the lowest point for civil liberties in the North during the Civil War, the lowest point for
civil liberties in U.S. history to that time, and one of the lowest for civil liberties in U.S. history.”
N
EELY
,
supra
note 82, at 53.
170
See id.
171
See supra
text accompanying note 115. Even assuming arguendo that the President has legal
authority to suspend the writ, it does not follow that the President can constitutionally delegate to a civil
or military officer the discretion to suspend the writ. There are some powers that are beyond delegation
and given the potential abuse of discretion, such authority should rest with an elected official.
172
See N
EELY
, supra note 82, at 53.
173
See Abraham Lincoln, Proclamation Suspending the Writ of Habeas Corpus (September 24,
1862), in 5 C
OLLECTED
W
ORKS OF
A
BRAHAM
L
INCOLN
436, 436–37 (Roy P. Basler ed., 1953).
174
Id. at 437.