1863: “Writ of Habeas Corpus”

By the President of the United States of America. A Proclamation.

Whereas the Constitution of the United States has the privilege of the Writ of Habeas Corpus shall not be suspended unless when in cases of 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 statue 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 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. 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.

In testimony whereof, I have hereunto set my hand, and caused the Seal of the United States to be affixed, this Fifteenth day of September, in the year of our Lord one thousand eight hundred and sixty three and of the Independence of the United States of America the Eighty-eighth.

By the President: Abraham Lincoln

William H. Seward, Secretary of State.

The Constitution of the United States of America, Page 1

Writ of Habeas Corpus & The U.S. Constitution

Let’s get the term right first! According to the dictionary, it means:

  • Literally in Latin, “You have the body.”
  • English – a writ (court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner’s release.

So, how is this used in the U.S. Constitution?

Article 1, Section 9 – The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Wait, What Happened?

I’ll admit it…that primary source is a tangle of words. So what does it mean and what happened?

  1. It means that the U.S. Congress had passed legislation which the president signed into law, suspending that Writ of Habeas Corpus. The law was signed in March 1863.
  2. Today’s featured document was released in September 1863 as an explanation and justification for that earlier legislation.

Lincoln, 1863

The debate, presidential executive orders, and legislation about the Writ of Habeas Corpus went back to 1861 and what opinions and press writings were permitted. What was “treasonous”? What was protected under free speech? Who can be held prisoner?

After the Civil War, the suspension of the writ was permitted in some of the Reconstruction legislation in times of crisis.

Historical Musings

We often focus on the battles or the social turning points from the American Civil War. Politics, of course, draw attention for the 1860, 1862,  and 1864 Elections, the Emancipation Proclamation, and the foundations of the new constitutional amendments.

However, other political moments loomed large, though often overlooked. Executive orders, war powers, executive influence in military affairs, constitutional interpretation debates, and other moments were argued, changed, or quietly implemented.

Your Historian,

Miss Sarah

About Sarah Kay Bierle

I’m Sarah Kay Bierle, historian, editor, and historical fiction writer. When sharing history, I try to keep the facts interesting and understandable. History is about real people, real actions, real effects and it should inspire us today.
This entry was posted in 1863: In Their Words, American Civil War and tagged , , , . Bookmark the permalink.

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