Lincoln Issues Proclamation Suspending Habeas Corpus Rights

Portrait of a young Abraham Lincoln chopping logs
Young Abraham Lincoln, the Old Log Splitter. Getty Images Archive

Shortly after the start of the American Civil War in 1861, President of the United States Abraham Lincoln took two steps intended to maintain order and public safety in the now-divided country. In his capacity as commander in chief, Lincoln declared martial law in all states and ordered the suspension of the constitutionally protected right to writs of habeas corpus in the state of Maryland and parts of the Midwestern states.​​

The right of writs of habeas corpus are granted in Article I, Section 9, clause 2 of the U.S. Constitution, which states, "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."

In response to the arrest of Maryland secessionist John Merryman by Union troops, then Chief Justice of the Supreme Court Roger B. Taney defied Lincoln's order and issued a writ of habeas corpus demanding that the U.S. Military bring Merryman before the Supreme Court. When Lincoln and the military refused to honor the writ, Chief Justice Taney in Ex-parte MERRYMAN declared Lincoln's suspension of habeas corpus unconstitutional. Lincoln and the military ignored Taney's ruling.

On Sept. 24, 1862, President Lincoln issued the following proclamation suspending the right to writs of habeas corpus nationwide:

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA:

A PROCLAMATION

Whereas, it has become necessary to call into service not only volunteers but also portions of the militia of the States by draft in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure and from giving aid and comfort in various ways to the insurrection;

Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission:

Second. That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority of by the sentence of any Court Martial or Military Commission.

In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed.

Done at the City of Washington this twenty fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the 87th.

ABRAHAM LINCOLN

By the President:

WILLIAM H. SEWARD, Secretary of State.

What is a Writ of Habeas Corpus?

A writ of habeas corpus is a judicially enforceable order issued by a court of law to a prison official ordering that a prisoner ​must be brought to the court so it can be determined whether or not that prisoner had been lawfully imprisoned and, if not, whether he or she should be released from custody.

A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. The right of habeas corpus is the constitutionally bestowed right of a person to present evidence before a court that he or she has been wrongly imprisoned.