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. U.S. Constitution, Article One, Section Nine

The right of a prisoner to know the charges upon which he has been imprisoned is one of the basic rights granted by the U.S. Constitution. Known as habeas corpus, this right is both intrinsic to the justice system of the United States and important to ensuring freedom and liberty, rights which are also guaranteed to U.S. citizens.

During the Civil War, U.S. President Abraham Lincoln suspended habeas corpus, allowing suspected Confederate sympathizers to be imprisoned without knowing the cause – usually because there was no reason for their imprisonment other than their Confederate sympathies. Using the “unless when in cases of rebellion or invasion” clause to the right of habeas corpus, Lincoln exercised his executive authority to imprison those whom he felt were a threat to the Union.

Although Lincoln began the suspension of habeas corpus during 1861, he did not officially proclaim the suspension until 1862, when he released his “Domestic Intelligence Proclamation.” The proclamation read:

DOMESTIC INTELLIGENCE. A PROCLAMATION. By the President of the United States of America: 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, 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 the rebels against the authority of the 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 prisons, or other place of confinement, by any military authority, or by the sentence of any court-martial or military commission….

Lincoln’s policy of suspension of habeas corpus was not without its foes. Although suspension of habeas corpus was in effect in several border states and in the midwest, Maryland, a border state with strong Confederate sympathies that nevertheless remained with the Union, experienced the most infamous instances of the suspension of habeas corpus.

During the Civil War era, Maryland’s capital of Baltimore was a thoroughly Southern city. A predominantly slave-supported city, Baltimore’s sympathies lay wholly with its Southern neighbors, and it was taken for granted that the state of Maryland would cede from the Union.

Maryland did not, however, secede. Lincoln prevented the secession of Maryland with the occupation of Baltimore by Union troops and the imprisonment of Confederate sympathizing state and city leaders under the suspension of habeas corpus. The mayor, city council, and police commissioner of Baltimore were among the first arrested and imprisoned without cause in Fort McHenry; they were soon joined by several members of the state legislature. By replacing the leaders who were Confederate sympathizers, Lincoln effectively quashed the secession movement in Maryland.

Lincoln’s actions under the suspension of habeas corpus did not go unchallenged. Supreme Court Chief Justice Roger Taney overturned the suspension of habeas corpus in his Ex Parte Merryman

decision. Taney’s order was ignored by Lincoln, and in 1863, under Lincoln’s direction, Congress passed the Habeas Corpus Act of 1863, which ratified the suspension of the right.Interestingly, one of the Baltimore residents arrested during suspension of habeas corpus was Francis Key Howard, editor of the Baltimore Exchange and the grandson of Francis Scott Key, author of The Star Spangled Banner. Howard wrote an editorial criticizing the Lincoln administration’s imprisonment of the city and state officials from Baltimore and Maryland without due process, and soon found himself joining them at Fort McHenry. Ironically, he was imprisoned close to the sight where his grandfather had composed the Star Spangled Banner.

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