Page:Lincoln's Suspension of Habeas Corpus.djvu/8

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218
BULLETIN OF THE UNIVERSITY OF WISCONSIN.

at least was nowhere controverted.[1] The President's action in 1861 was a practical denial of the correctness of this view. The stand which Congress took on this seeming encroachment upon its hitherto unquestioned jurisdiction manifestly merits careful examination. If Congress acquiesced in Presidential suspension, if, as this essay attempts to demonstrate, it conceded the President's right under the given circumstances to suspend, the historical precedent thus established must be given great weight. It is true that the conditions of the time were abnormal, and true that "acts committed in time of war, under the pressure of necessity and self-preservation, are not likely to ripen into precedents for times of peace."[2] But federal suspension of the privilege of the writ of habeas corpus cannot constitutionally occur in time of peace; it is a proceeding which, fortunately for the people of the United States, can be resorted to only in most abnormal times. The importance of the decision of Congress in 1861–1863 upon the question of the President's right to suspend is therefore not weakened by the conditions under which the decision was rendered.

  1. "I had supposed it to be one of those points of constitutional law upon which there was no difference of opinion, and that it was admitted on all hands that the privilege of the Writ could not be suspended, except by act of Congress." Taney, C. J., in ex parte Merryman, Taney's Circuit Court Decisions, p. 255.

    "The better opinion . . . among judges and lawyers and constitutional commentators, surely is that the writ of habeas corpus was never intended by the Constitution to be suspended except in pursuance of an act of Congress. The courts have so held, judges have so stated, commentators have so written, and not a commentator can be found, who has written on the Constitution before this rebellion, who ever disputed that proposition. There is great diversity of opinion in the country now." Trumbull, in the Senate, December 9, 1862. Globe, 3d. S. 37th Cong. p. 31.

  2. Lyman Tremain in N. Y. Daily Tribune, September 11, 1861.