CHAPTER I.THE HABEAS CORPUS PROBLEM.
The exclusive right of Congress to suspend the privilege of the writ of habeas corpus was challenged by President Lincoln at the outset of the Civil War. April 27, 1861, apprehensive for the safety of the isolated capital, the President issued an order authorizing General Winfield Scott to suspend the writ of habeas corpus. The order, which practically empowered General Scott to arrest and detain at will, was as follows: "You are engaged in repressing an insurrection against the laws of the United States. If at any point on or in the vicinity of any military line which is now or which shall be used between the city of Philadelphia and the city of Washington you find resistance which renders it necessary to suspend the writ of habeas corpus for the public safety, you personally or through the officer in command at the point where resistance occurs, are authorized to suspend that writ."
- The customary phrasing is "suspend the writ of habeas corpus."
- It is still a disputed point in legal theory whether the suspension of the privilege of the writ authorizes arrests. The obiter dictum of the Supreme Court, in ex parte Milligan, that the suspension "does not authorize the arrest of any one, but simply denies to one arrested the privilege of this writ in order to obtain his liberty," was a flat denial of the correctness of the practice of the Civil War. Four minority justices, however, including Chief Justice Chase, upheld the legality of the practice. See 4 Wallace, pp. 115, 137. The President in his message of the extra session, July 4, 1861, said that he had authorized General Scott to suspend the privilege of the writ, or, as he explained, "to arrest and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety." Works, vol. II. p. 59. See also the President's letter to Erastus Corning and others, June 12, 1863. Ibid. p. 348. See also Seward to Lyons, October 14, 1861. 115 War Records, p. 633.
- 115 War Records, p. 19. The words, "on or in the vicinity of any military line" etc., were a euphemism for "anywhere in Maryland." See, for example, Latham's statement in the Senate, July 20, 1861. Globe, 1st S. 37th Cong. Appendix, p. 19.