[rustbucket]

It is at least debatable whether "in Cases of Rebellion or Invasion the public Safety may require it," and Congress not in session, the President may constitutionally suspend habeas corpus on his own authority.

I think the Constitution and the founders (such as Hamilton, Madison, Jay, and others) were clear on what entity has the power to suspend the privilege of the writ of habeas corpus.

Lincoln suspended the privilege of the writ multiple times when Congress was not in session. The one possible exception to this was when Lincoln suspended it for Missouri on the same day that Congress reconvened. Perhaps he sent his proclamation out before Congress formally opened its session that day.

I thought it might be instructive to compare the actions of the two presidents with respect to their suspensions of the privilege of the writ of habeas corpus. This list does not include situations where an unauthorized person might have suspended the privilege in his local area.

Lincoln

March 4, 1861. Lincoln inaugurated as president.

April 27, 1861. Without Congressional approval, Lincoln authorized suspension of the writ near the military railroad lines in Maryland and the railroad line up to Philadelphia on April 27, 1861 . Source: Link

May 10, 1861. Without Congressional approval, Lincoln authorized the commander of US forces on the Florida coast to suspend habeas corpus on May 10, 1861. Source: Link

July 2, 1861. Without Congressional approval, Lincoln authorized the commander of US forces to suspend the writ of habeas corpus along the military line between Washington and New York as needed. Source: Link.

October 14, 1861. Without Congressional approval, Lincoln authorized General Winfield Scott and officers under his command to suspend the writ any place between Bangor, Maine, and Washington on October 14, 1861. Source: Link

December 2, 1861. Without Congressional approval, Lincoln authorized the commanding general in Missouri to suspend the writ on December 2, 1861. Congress was in session starting on December 2. Source: Link

August 8, 1862. At the direction of Lincoln and without Congressional approval, Edwin Stanton suspended the writ for draft resisters and persons arrested for disloyal practices on August 8, 1862. Source: Official Records: Series 3, vol. 2, Part 1 (Union Letters, Orders, Reports) Page 370 Correspondence, etc.

September 24, 1862.Lincoln suspended habeas corpus nationwide without Congressional approval on September 24, 1862. Source: Link

March 3, 1863. Habeas Corpus Act. Congress approves Lincoln suspending the privilege of the writ during the war.

May 30, 1863. The Governor of Indiana writes to Lincoln protesting Gen. Burnside’s Order No. 38, the order that was used to arrest Clement Vallandigham. Vallandigham requests a writ of habeas corpus. The request reaches the Supreme Court of the US, which decided it could not intervene in a military trial. The use of military trials to try civilians in areas where the regular civil courts are operating was later declared unconstitutional by the Supreme Court in Ex Parte Milligan (1866). See comment of the Indiana governor to Lincoln concerning Burnside’s Order No. 38 [Link.

September 15, 1863. Lincoln suspended habeas corpus nationwide with Congressional approval on September 15, 1863. This was ended by President Johnson on December 2, 1865. See: Link

July 5, 1864. Lincoln suspended habeas corpus in the state of Kentucky with Congressional approval on July 5, 1864. See: Link/.

Davis

February 8, 1861.The provisional Constitution of the Confederate States of America was adopted. It has a habeas corpus clause similar to that of the US Constitution.

February 18, 1861.Davis inaugurated as president.

March 11, 1861. The permanent Constitution of the Confederate States of America was adopted. It has a habeas corpus clause similar to that of the US Constitution.

All of 1861. Davis does NOT suspend the writ of habeas corpus although the Confederate Congress had the power to authorize Davis to suspend it under the Confederate Constitution.

February 22, 1862. Davis inaugurated as president a second time. In his inaugural address he excoriates the North for having suspended habeas corpus by executive mandate (rather than with Congressional approval). Source: Link.

February 27, 1862. The Confederate Congress authorizes Jefferson Davis to suspend the privilege of the writ for cities, towns, and military districts in danger of attack. Davis issues a series of proclamations under this act over the next couple of months (listed below). Source: Link

February 27, 1862. In a proclamation stating he has been given the authority by Congress to suspends the writ of habeas corpus, Davis suspends the writ in Norfolk and Portsmouth, Virginia. Source: Link. Source: Official Records, Series II, Volume 3, page 121.

March 1, 1862. In another proclamation Davis suspended the writ in Richmond, Virginia by the authority given him by Congress. Source: Official Records, Series II, Volume 3, page 122.

March 8, 1862. By the authority given him by Congress, Davis suspends habeas corpus in Petersburg, Virginia. Source: Official Records, Series II, Volume 3, page 123.

March 14, 1862.By the authority given him by Congress, Davis suspends the writ in five counties in Virginia. Source: Source: Official Records, Series II, Volume 3, page 124.

March 29, 1862. By the authority given him by Congress, Davis suspends the writ of habeas corpus in ten more counties in Virginia. Source: Source: Official Records, Series II, Volume 3, page 126.

April 8, 1862. By the authority given him by Congress, Davis suspends the writ of habeas corpus in the Department of East Tennessee. Source: Official Records, Series II, Volume 3, page 128.

April 19, 1862. The Confederate Congress restricts their February 27, 1862 habeas corpus act to arrests made by the authorities of the Confederate Government or for offenses against the same. The February 27, 1862 Act is set to expire October 13, 1862. Source: Link

May 1, 1862. By the authority given him by Congress, Davis suspends the writ of habeas corpus in parts of coastal South Carolina. Source: Source: Official Records, Series II, Volume 3, page 132.

May 3, 1862. By the authority given him by Congress, Davis suspends the writ of habeas corpus in five Virginia counties. Source: Official Records, Series II, Volume 3, page 132-133.

September 18, 1862. The Confederate Congress restores habeas corpus. Source: Link.

October 13, 1862. The February 27, 1862 habeas corpus act expires and the Confederate Congress renews it until February 13, 1863. Source: Yankee Leviathan by Bensel, pg 142.

February 13. 1863. The February 27. 1862 habeas corpus act expires. Source: Yankee Leviathan by Bensel, pg 142.

February 13, 1864. The Confederate Congress passes a bill allowing habeas corpus to be suspended by the President, the Secretary of War, or the Commander of Trans-Mississippi. It lasts until no more than 90 days after the next meeting of Congress. Source: Link. The act is to expire August 1, 1864. Source: Yankee Leviathan by Bensel, pg 142.

[BroJoeK]

rusty: "I thought it might be instructive to compare the actions of the two presidents with respect to their suspensions of the privilege of the writ of habeas corpus."

Thanks for a nice piece of work!.

I would again point out some salient facts your post doesn't mention.

1. At the time of Lincoln's first three suspensions (April 27, May 10, July 2, 1861), Congress was not in session.

2. When Congress reconvened July 1861, the Senate took up a bill to authorize Lincoln's habeas corpus suspensions.
   But the bill's language did not suit even some supporters -- i.e., Illinois Senator Lyman Thrumbul -- so neither it nor Thrumbull's alternative bill were voted on.
   Note that no bill to censure or revoke the President's actions was ever introduced.
   Illinois Senator Lyman Thrumbul:

3. "On February 14, 1862, Lincoln ordered most prisoners released,[13] putting an end to court challenges for the time being.
   He again suspended habeas corpus on his own authority in September that same year, however, in response to resistance to his calling up of the militia.[14]"

4. Congress again debated the question in December 1862, and again the question was authorizing and indemnifying President Lincoln's suspensions of habeas corpus -- not censuring or revoking them -- and this time the result was the Habeas Corpus Suspension Act of 1863.

5. In the case of Copperhead Ohio Congressman Clement Vallandigam who was denied habeas corpus and sentenced to the most severe, cruel and inhuman punishment possible to imagine -- banishment to the Confederacy! ;-) -- the US Supreme Court wisely ruled that it could not address the matter without Congressional approval.
   After the war was safely won, then the Supreme Court reasserted itself, in a different case (Ex Parte Milligan- 1866) by ruling that military courts could not be used when civil courts were operational.
   Copperhead Ohio Congressman Clement Vallandigham:

rusty: "February 22, 1862. Davis inaugurated as president a second time.
In his inaugural address he excoriates the North for having suspended habeas corpus by executive mandate (rather than with Congressional approval). "

It might be worth noting exactly what Davis said:

"Whatever of hope some may have entertained that a returning sense of justice would remove the danger with which our rights were threatened, and render it possible to preserve the Union of the Constitution, must have been dispelled by the malignity and barbarity of the Northern States in the prosecution of the existing war.
The confidence of the most hopeful among us must have been destroyed by the disregard they have recently exhibited for all the time-honored bulwarks of civil and religious liberty.
Bastiles filled with prisoners, arrested without civil process, or indictment duly found; the writ of habeas corpus suspended by Executive mandate, a State Legislature controlled by the imprisonment of members whose avowed principles suggested to the Federal Executive that there might be another added to the list of seceded States; elections held under threats of a military power; civil officers, peaceful citizens, and gentle women incarcerated for opinion's sake, proclaimed the incapacity of our late associates to administer a government as free, liberal, and humane as that established for our common use."

All these allegations, however true or not, were in response to the Confederacy's numerous acts and formal declaration of war on the United States, which naturally, Davis didn't mention.