Lincoln's Suspension of the Writ of Habeas Corpus: An Historical and Constitutional Analysis (2024)

The Immodest Man

On April 15,1861, twelve days before he first authorized suspension of the writof habeas corpus, Lincoln called a special session of Congress toconvene on July 4. Before Congress convened, Lincoln followed hisApril 27 order authorizing suspension with a May 10 orderauthorizing suspension on part of the Florida coast[3] and a July 2 order authorizing suspension betweenPhiladelphia and New York.[4]

On July 4, Lincoln delivered a message tothe special session of Congress.[5] He referred to hissuspensions of the writ, quoted the suspension clause, andjustified the suspensions on the ground that "we have a case ofrebellion, and the public safety does require" suspension of thewrit. He then went on: "Now it is insisted that Congress, and notthe Executive, is vested with this power. But the Constitutionitself, is silent as to which, or who, is to exercise the power;and as the provision was plainly made for a dangerous emergency, itcannot be believed the framers of the instrument intended, that, inevery case, the danger should run its course, until Congress couldbe called together; the very assembling of which might be prevented... by the rebellion. No more extended argument is now offered, asan opinion ... will probably be presented by the Attorney General.Whether there shall be any legislation upon the subject, and ifany, what, is submitted entirely to the better judgment ofCongress."[6]

The promised opinion of Attorney GeneralEdward Bates came the next day.[7] The opinion was devotedprimarily to the president's power to make arrests without warrant,rather than to the suspension of habeas corpus. Bates argued thatthe president is authorized to suspend the writ because he ischarged with preservation of the public safety, but he thenconcluded with his personal opinion that the power of suspensionflows from the president's power to make warrantless arrests.

While Lincoln's defense of hisconstitutional power of suspension is stated tentatively in hismessage to Congress, his actions and later words confirm his beliefthat he, and he alone, had the constitutional power to suspend thewrit of habeas corpus.

On July 2, just two days before Congressconvened, Lincoln issued an order authorizing suspension of thewrit of habeas corpus between New York andPhiladelphia—friendly territory for the administration. Buthe didn't suspend the writ, which suggests a lack of urgency.Lincoln could have sought and almost certainly could have obtainedcongressional authorization before issuing the order, but he didn'tdo so. He didn't seek suspension authorization in his July 4message or at any later time. Indeed, when he says in his messagethat "whether there shall be any legislation on this subject ... issubmitted to the better judgment of Congress," Lincoln appears toadvise Congress to act with more deliberation than speed if itdecides to act at all.

Congress accepted Lincoln's invitation todawdle. As we will see, Congress did not enact legislationauthorizing suspension of habeas corpus until March 3, 1863. In themeantime, Lincoln's 1861 orders authorizing suspension remained inforce, and on September 24, 1862, he issued a proclamation imposingmartial law and suspending the writ of habeas corpus. Theproclamation orders that, for the rest of the war, (i) "all rebelsand insurgents, their aiders and abettors within the United States,and all persons discouraging volunteer enlistments, resistingmilitia drafts, or guilty of any disloyal practice, affording aidor comfort to rebels against the authority of the United States,shall be subject to martial law and liable to trial and punishmentby courts martial or military commission," and (ii) "the writ ofhabeas corpus is suspended in respect to all persons arrested orimprisoned in any fort, camp, arsenal, military prison, or otherplace of confinement by any military authority or by the sentenceof any court martial or military commission."[8]

This proclamation is breathtaking in itsscope, hardly the act of a man who feels the need of acongressional crutch. When Congress handed him a crutch with itsMarch 3, 1863, suspension act, he resisted its use and said hedidn't need it, and when he finally did use it in September, 1863,he positioned himself to argue that he could walk without it.

In May 1863, New York Democrats adoptedresolutions criticizing Lincoln for infringements of civilliberties, including the arrest and detention of Ohio Copperheadpolitician Clement Vallandigham and others. Erastus Corningforwarded those resolutions to Lincoln, who responded in awell-known June 12 letter to Corning.[9] What is notableabout Lincoln's letter is that it does not rely upon or evenmention the recently enacted suspension law to justify his actions.

Any doubt about Lincoln's confidence in hispower is removed by a letter he wrote later in June. Ohio Democratssent to Lincoln resolutions they had adopted in response toLincoln's position as set forth in the Corning letter. Lincolnresponded in a June 29 letter to Matthew Birchard.[10] Though less well known than the Corning letter,the June 29 letter is significant because it gave Lincoln anopening to assert unequivocally his constitutional power to suspendhabeas corpus. The Ohio resolutions asked what would happen ifaction was taken to "expunge from the constitution this limitationupon the power of Congress to suspend the writ of habeas corpus."Lincoln, after saying that the suspension clause was "improperlycalled, as I think, a limitation on Congress," and noting that theclause authorized suspension if the public safety required it intimes of rebellion, continued: "You ask ... whether I really claimthat I may override all the guarantied rights of individuals, onthe plea of conserving the public safety—when I may choose tosay the public safety requires it. This question, divested of thephraseology calculated to represent me as struggling for anarbitrary personal prerogative, is either simply a questionwho shall decide, or an affirmation that nobody shalldecide, what the public safety does require, in cases of rebellionor invasion. The constitution contemplates the question as likelyto occur for decision, but it does not expressly declare who is todecide it. By necessary implication, when rebellion or invasioncomes, the decision is to be made, from time to time; and I thinkthe man whom, for the time, the people have, under theconstitution, made the commander-in-chief, of their Army and Navy,is the man who holds the power...."[11]

In 1863 there was widespread resistance tothe draft, including rioting and looting in New York City in July.On September 15, 1863, Lincoln, likely seeking political cover thathe would not have by enforcing his September 1862 suspension order,issued a proclamation suspending the writ of habeas corpus basedupon the suspension act.[12] The order is broad, but notas broad as the suspending language in the 1862 order, which he didnot revoke. His September 15 order begins by referring to both theConstitution and the legislation and ends by urging all citizens"to conduct and govern themselves ... in accordance with theConstitution of the United States and the laws of Congress." Whyleave the 1862 order of suspension in place and bracket his 1863order with references to the Constitution unless he was positioninghimself to assert continuing suspension power under theConstitution as well as the statute?

While Lincoln talked and acted, Congresstalked without acting. On July 5, 1861, Massachusetts senator HenryWilson introduced a bill ratifying Lincoln's prior actions ingeneral terms, but he later replaced it with a bill that would haveratified specific acts, including the suspension authorizations.Lincoln's friend and Illinois senator Lyman Trumbull objected tothis approach on the grounds that ratification of past suspensionorders might suggest that Lincoln did not have authority to issuesimilar future orders, and he introduced legislation authorizingLincoln to suspend habeas corpus. Neither the Wilson nor theTrumbull bill passed in the special session.[13] No habeas corpus bill was passed in the ensuinggeneral session of Congress either. Opposition to congressionalaction was apparently based in part on the concern of someRepublicans that legislation would be read as a rejection ofpresidential power.[14]

Finally, on March 3, 1863, nearly two yearsinto the war and twenty months after the special session, Congresspassed an act authorizing Lincoln to suspend the writ of habeascorpus.[15] Section 1 of the actprovided that the president "is" authorized to suspend the writwhen, in his opinion, public safety requires it. Section 2 requiredthe secretaries of state and of war to provide to the federalcourts lists of all prisoners held by the federal government exceptprisoners of war, and required the courts to order the release ofall listed prisoners who were not indicted by the first availablegrand jury and who took a loyalty oath and, at the court'sdiscretion, posted bond.

As enacted, the suspension act said thatthe president "is" authorized to suspend the writ, while earlierversions said that the president "shall be" empowered. Thisevolution in language coupled with the debates in and delay byCongress as it grappled with habeas corpus for twenty monthsconvinced Professor Sellery that Congress's "dominating motive wasunquestionably a desire not to deny the President's right tosuspend." Sellery adds, however, that Section 2 and the succeedingsections of the suspension act converted the act as a whole into a"modified suspension of the writ of habeas corpus."[16]

Based on the evidence, Sellery fairlyassesses congressional motive, but he understates the significanceof Section 2. That section imposes a restriction that, if enforced,would severely restrict and even disable the presidentialsuspension power. Section 2 effectively time-limits suspensions. Byfreeing all those not indicted by the first available grand jury,it handed the jailhouse keys to all prisoners who committedsubversive but non-criminal acts. This would largely defeatLincoln's use of military detention, for as he said in the Corningletter, military arrests and detentions allowed him to imprison andhold law-abiding persons who undermined or disrupted the conduct ofthe war.

Under Lincoln's view of the Constitution,Section 2 of the suspension act imposed an unconstitutionalrestraint on his power to suspend habeas corpus, and he had made itclear in words and acts that he didn't need the authority conferredby Section 1, so he could have vetoed the act. That, however, wouldhave provoked a congressional confrontation in the dark daysfollowing the Battle of Fredericksburg. He did not veto it or evenoppose it. Nor did he issue a signing statement questioning theconstitutionality of parts of the act, as he had done when hesigned the Second Confiscation Act. Instead, he dealt with Section2 of the act as he once said an old farmer had dealt with a treetrunk too big and deeply rooted to be dislodged by a breakingplow—he plowed around it.

His plow was stored in the provision ofSection 2 requiring the secretaries of state and war to furnish therequired lists "as soon as practicable." The courts could not actwithout those lists, which were to include the name, date ofarrest, and federal judicial district of residence for eachprisoner. Because of the September 1862 declaration of martial lawand the 1862 and 1863 suspension orders, the prisoners were heldthroughout the country in military facilities which, in the wordsof the 1862 suspension order, included forts, camps, arsenals,military prisons, and "other places of confinement." The militaryjustice system that processed and held the prisoners was newlyformed, and it held a prison population in constant flux as peoplewere summarily detained and discharged. Under the circ*mstances, itwould have been difficult with diligence and good faith to producethe lists with the required data, and the "as soon as practicable"requirement made it easy to relax diligence, if not good faith.When the system had not produced any lists, the Senate passed aresolution directing the secretary of war to report on the lists.Nicolay and Hay describe the response: "The Secretary promptlyreplied, transmitting the report of the Judge Advocate General,showing that all possible vigilance had been used in complying withthe terms of the law. The rolls were necessarily incomplete; theoffenses with which the prisoners were charged were frequentlyindefinitely stated; and instead of specifying the particularofficers by whom arrests were made the President and Secretary ofWar assumed the responsibility in all cases.... Those arrested formilitary offenses were tried with the greatest possibleexpedition.... Several commissions were actively engaged ininvestigating the cases of prisoners, and releasing them wheneverit could be done without prejudice to the public safety."[17] In other words, we are responding quickly andwith full cooperation, doing the best we can in a difficultsituation, committed to speedy justice for all. In the meantime,though, it appears that no lists were forthcoming, and that theprisoners continued to be processed in the military justice system,not the federal courts. Nicolay and Hay give no indication ofcongressional follow-up or response. The president had successfullyevaded the law.

John Hay noted that Lincoln, like othergreat men, was not a modest man. In his handling of habeas corpussuspension, he was at his immodest best. He was typicallyself-assured, decisive, adept, and politically astute. He actedforcefully at the outset, but then, in his July 4, 1861, message toCongress he seemed to acknowledge a congressional role in habeascorpus even as he advanced a soft defense of his power to suspendthe Great Writ and suggested that there was no urgent need forCongress to act. A less confident president would have welcomedcongressional support, but Lincoln knew that the implications ofcongressional authority to suspend the writ would erode hisconstitutional power, and he was probably concerned that Congressmight hedge his authority with burdensome restrictions (as, in theevent, it did).

When Congress accepted Lincoln's invitationto inaction, he continued to act without congressional authority,most decisively in his September 1862 order imposing martial lawand suspending habeas corpus throughout the country. In hisresponse to Birchert, he abandoned the diffidence in his specialsession message and forcefully expressed the opinion that he, andhe alone, held the power of suspension, but since this was aprivate letter rather than an official communication, Congresscould ignore it. Faced with disabling restrictions in thesuspension act, he ignored the restrictions without roilingCongress.

In sum, in an area generally thought at thetime to be within the congressional domain, he manipulatedCongress, challenged its powers, ignored its laws, and imposed hisauthority and will without ruffling congressional feathers orprovoking congressional response.

In an admiring response to Lincoln's SecondInaugural Address, Charles Francis Adams Jr. compared "the men ofthe schools" unfavorably to Lincoln. The next section addresses howLincoln's use of the suspension clause played with the men of theschools. In the final part of this article, an examination of theConstitution will reveal who holds the constitutional power tosuspend the writ of habeas corpus, allowing us to see whether onthis issue Adams fairly compares Lincoln and his doubters among themen of the schools.

The Suspension Clause in the Academy

In early 1862,Horace Binney published an article that provided strong scholarlysupport for Lincoln's claim to a constitutional power to suspendthe writ of habeas corpus. Binney was an eighty-two-year-oldPhiladelphia lawyer, politician, statesman, and author who hadtrained in the law under Jared Ingersoll, one of the members of theConstitutional Convention. His article remains the most penetratinganalysis of the constitutional power to suspend the privilege ofthe writ of habeas corpus.

Binney's article is long and repetitive,but it can be distilled to a few points. Contrary to what Taneysays in the Merryman opinion, Binney claims thatpresidential suspension of the writ of habeas corpus is consistentwith, rather than a departure from, English practice. Under Englishpractice, only the House of Commons can authorize suspension of thewrit, but when it does so, it leaves the actual suspension to thechief executive, since only the chief executive can determinewhether the conditions of suspension are met. Reading thesuspension clause as both a limit on and a grant of authority tosuspend the writ, Binney argues that the Constitution itselfauthorizes suspension, and that, as with the English chiefexecutive, the president is the only one who can determine whensuspension is called for. His position gives him the capacity todetermine whether suspension is required, and he has the power todo so under his Article II powers to preserve, protect, and defendthe Constitution and to take care that the laws be faithfullyexecuted.[18]

Binney dismisses Taney's appeal to theviews of Marshall, Story, and Jefferson. In Ex ParteBollman, 8 U.S. 75 (1807), Marshall said that it is up toCongress to say whether the public safety requires suspension ofthe writ of habeas corpus. Binney points out that Marshall'sstatement is dictum, was not given during times of rebellion orinvasion, was made without consideration of or argument on behalfof executive power, and refers to congressional limitation ofjudicial power to issue writs of habeas corpus, not to suspensionof the privilege of individuals to have recourse to the writ. Storyconsiders the suspension clause only briefly in the capacity of acommentator, not as a judge. His contribution is limited to astatement that "it would seem, as the power is given to Congress tosuspend the writ of habeas corpus in cases of rebellion orinvasion, that the right to judge whether an exigency had arisen,must exclusively belong to that body." Jefferson soughtcongressional authority to suspend the writ in order to detain theBurr conspirators, whose conduct was neither the rebellion nor theinvasion required by the suspension clause. Under thosecirc*mstances, Jefferson's request for congressional authority wasan attempt to round up a gang for an assault on the Constitution,not a bow to superior constitutional authority.[19]

Binney finds no significance in thelocation of the suspension clause. It is in Article I of theConstitution, which confers power on Congress, but it was movedthere from the judiciary article by the Constitutional Convention'sCommittee on Style, suggesting that location was a matter ofconvenience or style, and it evolved from an earlier proposal thatspecifically limited legislative power of suspension. If anything,Binney says, the dropped reference to the legislature indicatesthat the suspension clause as adopted is not a limit oncongressional power.[20] (Context confirms thatlocation is a matter of style, for the suspension clause and allother constitutional restrictions on congressional, presidential,and state power are tucked into Sections 9 and 10 of Article I.)

Not surprisingly, Binney's article promptedresponses. In his 1888 article, S. G. Fisher summarizes theseresponses, with particular emphasis on the serial responses ofGeorge Wharton, another Philadelphia lawyer.[21] In claiming that the suspension clause is a grantof authority to suspend, Binney ignored Lincoln's stricture that hewho pleads what he need not, may have to prove what he cannot. Thesuspension clause is manifestly not a grant of authority, andBinney didn't need to argue that it was in order to make his case;he could have argued that the president's executive powers underArticle II of the Constitution include the limited power to suspendrecognized, but not granted, by the suspension clause. By finding agrant in the suspension clause, he created a weak point that hisopponents exploited to great effect.

Since the suspension clause was not agrant, the opponents correctly argued, the power of suspension hadto be elsewhere in the Constitution, and Wharton found it in anumber of congressional powers in Article I, including the powersto declare war, raise and support armies, make rules concerningcaptures, call out the militia, and make all laws that may benecessary and proper to carry out these enumerated powers.[22] Binney responded, but he had been thrown on thedefensive. Fisher, who was sympathetic to Lincoln's exercise ofpower, concludes that Wharton's responses, and particularly hisreliance on the necessary and proper clause, were unanswerable.

Even though they were sparring 146 yearsago, Binney and his opponents give us the only hard look at themeaning and implications of the suspension clause. Fisher's 1888article is substantial, but it is largely a summary of thepositions of Binney and his opponents, with little independentanalysis. Randall's Constitutional Problems Under Lincolngenerally plumbs the legal depths of the constitutional issuesraised by Lincoln's conduct, but he doesn't examine the suspensionclause. Without offering his own analysis or opinion, he surveysthe views of Binney, other commentators, Taney, and a number ofstate judges, and then concludes that "the weight of opinion wouldseem to incline to the view that Congress has the exclusivesuspending power."[23] Clinton Rossiter'sConstitutional Dictatorship devotes only one relativelyshort chapter to the Civil War, and a small part of that to thesuspension clause, and he takes no position on whether Congress orthe president holds the suspension power.[24]

Randall's is the last extended discussionof the suspension clause. Most accounts of Lincoln's presidencyaddress the habeas corpus suspension in a few paragraphs or pages,with little examination of the underlying legal issues. Lincoln'sdefenders tend to find justification for his actions in the needfor quick response to crisis, not in the words of the Constitution.[25] Lincoln critics tend to conclude quickly and withlittle analysis that Congress holds the power of suspension.[26]

Duker, Farber, and Amar make some attemptto explore the suspension clause, but their attempts are brief,buried in books on larger topics, short on analysis, andunpersuasive.[27] Duker finds a congressionalpower of suspension in the militia clause, but his is a weakerdefense of congressional power than George Wharton mounted in 1862.Duker, Farber, and Amar all argue for a dominant power ofsuspension in Congress with a presidential power in emergencieswhen Congress is not is session,[28] but they findlittle support for their argument, and they don't explore itsimplications. For example, does presidential power die whenCongress assembles, to rise again if it adjourns without takingaction, or does the president have a power that dies forever onceCongress convenes? What if a sitting Congress sits with no actionduring an "emergency"? What language in the Constitution can beread to give the president a power that exists in fits and starts?Amar goes even further than Duker and Farber, claiming that thepresident is a spear-carrier for Congress. Lincoln, he said, viewedhimself "as America's chief officer, always on deck and oath-boundto keep the constitutional ship afloat," with a power "to suspendhabeas corpus ... so long as he received legislative authorizationas soon as Congress could be safely convened."[29] This clearly misstates Lincoln's position.

The scholars who have considered thesuspension clause since the Civil War have failed to examine thatclause in its constitutional context. It is important to look atthe suspension clause in its constitutional setting, and in thatcontext consider Lincoln's brief on his own behalf.

Text and Context: The Suspension Clause in its Constitutional Bed

In his paper,Horace Binney effectively countered Taney's arguments based uponEnglish history, the location of the suspension clause, and thewisdom of the elders. We could embellish these points a little, butthat would simply buttress a strong case. With those issues sweptaway, the only remaining issue is whether Congress or the presidentholds the power to suspend the privilege of the writ of habeascorpus when the public safety requires it during times of rebellionor invasion.

Section 1 of Article I of the Constitutionsays that Congress has only the powers "herein granted." Thegranted powers are listed in Section 8. Given the limit in Section1, Congress does not have the authority to suspend the writ ofhabeas corpus unless it can be found in one of the powers listed inSection 8.

George Wharton found congressionalauthority to suspend the writ of habeas corpus in the congressionalpowers to declare war, make rules concerning captures, raise andsupport armies, call out the militia, and make all laws necessaryand proper to implement these powers. William Duker points to thepower to call out the militia. The language of the provisions onwhich Wharton and Duker rely is critical for purposes of analysis.They rely on the provisions of Article I, Section 8 of theConstitution giving Congress the power:

To declare war, grant letters of marqueand reprisal, and make rules concerning captures on land andwater;

To raise and support armies, but no appropriation of money to thatuse shall be for a longer term than two years;To provide for calling forth the militia to execute the laws of theUnion, suppress insurrections and repel invasions;To make all laws which shall be necessary and proper for carryinginto execution the foregoing powers, and all other powers vested bythis Constitution in the government of the United States, or in anydepartment or officer thereof.

None of these powers gives Congressauthority to suspend the privilege of the writ of habeas corpus.Congress has the power to declare war, but the president has thepower to wage war. If the power to suspend the writ of habeascorpus arises from a war power, it arises from a power to wage,rather than a power to declare, war. The power to raise armies issubject to the same analysis; Congress raises armies, but thepresident commands them. The power to support armies is broader,but the reference to appropriations makes it clear that the supportpower is the power to provide money and materiel, not a power towage war.

The congressional power to make rulesconcerning captures on land and sea is coupled with the powers todeclare war and grant letters of marque and reprisal. In thiscontext, the capture power is a power to establish general rulesgoverning the capture or treatment of persons captured in theconduct of war. It is not a power to determine whether personsimprisoned away from the field of battle can be deprived of theprivilege of the writ of habeas corpus.

The power to "provide for calling forth themilitia" does not appear to authorize Congress to call the militiato federal service, but only to authorize the president to do so.But even if Congress has the power to order a call-up, the militiaonce called would be subject to the president's command under hiscommander-in-chief power. If anyone were to direct militiamen tohold prisoners without benefit of the writ of habeas corpus becausethe public safety required it, it would be the president. Besides,regular army troops might be able to repel an invasion or quell arebellion without calling up the militia, and even if the militiais called, it might not be used to arrest civilians. It is hard toargue that the power to suspend the writ of habeas corpus risesfrom the power to call up the militia when the writ could besuspended without calling up or using the militia.

Suspension of the writ of habeas corpuscannot be used as a necessary and proper tool for carrying theforegoing powers into effect unless it is a tool calculated toexercise those powers. It is not. The nature of those powers issuch that a power of suspension would be of no use in dischargingthe enumerated powers. There is a better argument to be made foruse of the necessary and proper clause to support congressionalsuspension of the writ. The necessary and proper clause authorizesCongress to make laws to implement the powers of any officer of theUnited States, including the president. One could argue that thisprovision gives Congress power to suspend the writ to assist thepresident in his role as commander in chief.

This is a good argument if the power ofsuspension is in its nature a legislative power. In the SteelSeizure Case,[30] for example, the SupremeCourt held that President Harry Truman could not seize steel millsduring the Korean War without congressional authority because thepower to take the property of American citizens during war time isa legislative power. Congress presumably could have provided thenecessary authority under the necessary and proper clause. It isnot a good argument if Article II gives the president the power tosuspend the writ, for then he can do so without help from Congress.As Binney notes, the necessary and proper clause does not applyunless its use is necessary as well as proper.[31]

Article II, Section 1 of the Constitutionsays that "the executive power shall be vested in a president ofthe United States of America." Sections 2 and 3 of Article II givethe president specifically listed powers. In his Merrymanopinion, Taney argues that the president's powers are limited tothose listed in Sections 2 and 3. Justice Robert H. Jacksonadvances the same argument in his concurring opinion in the SteelSeizure Case. It's a weak argument. Article I of the Constitutiongrants Congress only the legislative power "herein granted."Article III, Section 2 says that federal judicial power "shallextend to" only designated cases and controversies. Article II,Section 1, on the other hand, gives the president all of theexecutive power of the United States, without any indication thatit is limited to enumerated powers, and there is nothing inSections 2 or 3 to suggest that the list of presidential powers inthose sections is exhaustive. On the contrary, Sections 2 and 3 areclearly designed to achieve specific objectives, not to exhaust theuniverse of executive power. They contain powers that would notnecessarily be included in a general grant of executive power, suchas the commander-in-chief power and the powers to nominate judicialofficers, grant pardons and reprieves, and convene and adjournCongress; powers shared with Congress, such as the powers to maketreaties and appoint officials; and powers mixed with duty, such asthe power to suggest laws and report on the state of the Union toCongress and the power to "take care that the laws be faithfullyexecuted." These provisions serve to clarify, enlarge, or modifySection 1's grant of executive power, not displace it.

Given the breadth of the president's powersunder Article II, it is easy to find sources of presidentialauthority to suspend habeas corpus to the extent permitted by thesuspension clause. The authority is executive in its nature. It canbe exercised only if required by "the public safety." This is avery fact-specific requirement, demanding quick response anddecisive action. The executive is equipped for this. A legislativebody that meets intermittently and acts slowly is not. Binney madethis point, as did Lincoln in his Birchard letter when he said thatthe public safety demands suspension "from time to time."

Upon taking office, the president takes aconstitutionally mandated oath to "preserve, protect and defend theConstitution." While this oath is not itself a source of power, itrecognizes that the president's broad executive powers include a"preserve, protect and defend" power, for the Constitution wouldnot impose a duty without conferring the power to discharge it.This power is sufficiently broad to include authority to suspendhabeas corpus in the limited circ*mstances permitted by thesuspension clause.

The best source of executive suspensionauthority is the president's war power. This power is often equatedwith and limited to the president's power as commander in chief ofthe armed forces. But the war power is broader than this, as thefollowing example shows. In 1864, General Ulysses S. Grant wasgiven command of all of the land forces of the United States. If hehad in addition been given control of the naval forces, he wouldhave had the same command power as Lincoln (except, of course, forcommand over Grant himself). As this commander of all of the armedforces, Grant could not have imposed a blockade, or freed slavesthroughout the South, or suspended habeas corpus, arrested anddetained civilians, opened mail, suspended newspaper publication orgathered intelligence in areas beyond the theaters of operation.The war power is a combined military and executive power.

The nature of the war power was explored inthe Prize Cases.[32] On April 19 and April 27,1861, Lincoln imposed blockades of Southern ports.[33] His action was challenged on the grounds that theSouth was not a recognized combatant and that Congress had notdeclared war. In upholding the blockades, the Supreme Court brushedtechnicalities aside. For purposes of international law, a war infact is a war in law, and "it is not necessary to constitute warthat both parties should be ... sovereign states. A war may existwhen one of the belligerents claims sovereign rights as against theother."[34] The absence of acongressional declaration of war was irrelevant, for while adeclaration of war might be necessary to start a war, the presidenthad the power as well as a duty to respond to a war forced upon theUnited States, whether by rebellion or invasion and whether or notCongress had acted. The blockades were legitimate means of wagingthe war.

Under the doctrine of the Prize Cases, thepresident's war power is an amalgam of a military power to commandforces and an executive power to wage war, whether declared orforced upon the United States by hostile forces; his executivepower includes recourse to means needed to achieve the end.

Suspension of habeas corpus is aconstitutionally created weapon that can be used in, and only in,civil war and invasion. The president can wage war against rebelsand invaders without a congressional declaration of war. It wouldbe an absurd reading of the Constitution to conclude that thepresident needs congressional authority to deploy a constitutionalweapon designed specifically for use in wars that the president canwage without congressional authority.

Lincoln recognized the combinedexecutive/military source of his war power, and he used that powerto explain and justify his conduct. In his message to the specialsession of Congress, he said that the action of the rebels had lefthim "no choice" but to "call out the war power."[35] In an earlier draft of his message, "war power"had been "military power."[36] In a September 22,1861, letter to his friend Orville Browning, who had criticizedLincoln's revocation of General John Charles Frémont's orderfreeing slaves in Missouri, Lincoln said that the liberation ofslaves is purely political, not based on military law or necessity.[37] And when he took this "purely political" step inthe Preliminary Emancipation Proclamation, he identified himself aspresident of the United States as well as commander in chief of thearmed forces.[38] The EmancipationProclamation is based upon the commander-in-chief power, but itdescribes itself as "a fit and necessary war measure."[39] The Corning letter makes a forceful case forpresidential war powers.

Lincoln combined a simple appeal to his warpower with a few simple justifications for its use. In his specialsession message he famously asked whether he had to foregoenforcement of all other laws in order to observe one law. In theCorning letter, he asked whether he had to shoot a "simple-mindedsoldier boy" who deserted without touching the "wily agitator" whoinduced him to desert.[40] In that same letter,justifying preventive arrest and detention, he asked Corning toimagine how much better off the Union would have been if thegovernment had nabbed Generals John Breckenridge, Robert E. Lee,Joseph Johnston, John Magruder, William Preston, and Simon Bucknerand Commodore Franklin Buchanan before they took command ofConfederate forces.[41]

In his pre-war speeches, Lincoln oftenengaged in extended, closely reasoned and powerfully argued legalanalysis. In his First Inaugural Address and the Special SessionMessage, he swung a long, lawyerly club at the claimed right ofsecession. Yet he used a non-lawyerly appeal to his war powers tojustify his extraordinary wartime measures and a folksy approach tosupport the appeal. He may have sensed that his vast exercise ofauthority could only be sold by grounding it in a comprehensive,easy to understand power.

It worked. Lincoln's actions were oftencontroversial, even among some Republicans, and his personalpopularity waxed and waned with the fortunes of the Union armies.But in the end, the public and Congress stayed with him. TheDemocrats, enraged by Lincoln's actions, pushed opposition to theverge of disloyalty. They nominated McClellan for president in 1864on a peace platform just days before Atlanta fell, lost the 1864election in a landslide, and wandered in the political wildernessfor most of the next seventy years.

Horace Binney begins his paper by assertingthat "the power to suspend the privilege is supplementary of thepower to suppress or repel. It is a civil power to arrest forprivity or supposed privity with rebellion, as the military poweris to suppress by capture for overt acts of rebellion."[42] This passage captures the source of executivepower to suspend habeas corpus, and it expresses Lincoln'sposition. The difference between Lincoln and Binney is that Binneygoes on for another fifty pages. This is not to criticize Binney(except for prolixity). His role differed from Lincoln's, and hecould no more be expected to stop at two pages than Edward Everettat Gettysburg could have been expected to stop at two minutes. ButLincoln's simple argument is more compelling, truer to theConstitution, and less open to attack than Binney's more reasoneddiscourse. As a lawyer pleading his own case, no less than aspolitician and statesman, "the president is," as Secretary of StateWilliam Seward said, "the best of us."

The suspension clause, Article I, Section 9

The privilege of thewrit of habeas corpus shall not be suspended, unless when in casesof rebellion or invasion the public safety may require it.

The "herein granted" limit on congressional power, Article I, Section 1

All legislative powersherein granted shall be vested in a Congress of the United States,which shall consist of a Senate and House of Representatives.

Selected congressional powers, Article I, Section 8

The Congress shallhave power

To declare war, grant letters ofmarque and reprisal, and make rules concerning captures on land andwater;

To raise and support armies, but noappropriation of money to that use shall be for a longer term thantwo years;

To provide for calling forth themilitia to execute the laws of the Union, suppress insurrections

and repel invasions;To make all laws which shall benecessary and proper for carrying into execution the foregoingpowers, and all other powers vested by this Constitution in thegovernment of the United States, or in any department or officerthereof.

Presidential powers, Article II

Section 1. Theexecutive power shall be vested in a president of the United Statesof America ...

Section 2. The president shall becommander in chief of the army and navy of the United States, andof the militia of the several states, when called into the actualservice of the United States; he may require the opinion, inwriting, of the principal officer in each of the executivedepartments, upon any subject relating to the duties of theirrespective offices, and he shall have power to grant reprieves andpardons for offenses against the United States, except in cases ofimpeachment.

He shall have power, by and with theadvice and consent of the Senate, to make treaties, provided twothirds of the senators present concur; and he shall nominate, andby and with the advice and consent of the Senate, shall appointambassadors, other public ministers and consuls, judges of theSupreme Court, and all other officers of the United States, whoseappointments are not otherwise provided for, and which shall beestablished by law; but the Congress may by law vest theappointment of such inferior officers, as they think proper, in thepresident alone, in the courts of law, or in the heads ofdepartments.

The president shall have power tofill up all vacancies that may happen during the recess of theSenate, by granting commissions which shall expire at the end oftheir next session.

Section 3. He shall from time to timegive to the Congress information of the state of the Union, andrecommend to their consideration such measures as he shall judgenecessary and expedient; he may, on extraordinary occasions,convene both Houses, or either of them, and in case of disagreementbetween them, with respect to the time of adjournment, he mayadjourn them to such time as he may think proper; he shall receiveambassadors and other public ministers; he shall take care that thelaws be faithfully executed, and shall commission all the officersof the United States.

Presidential oath, Article II, Section 1

Before he enters onthe execution of his office, he shall take the following oath oraffirmation—"I do solemnly swear (or affirm) that I shallfaithfully execute the office of president of the United States,and will to the best of my ability, preserve, protect and defendthe Constitution of the United States."