Actually, contrary to what JDS says, the Constitution does not clearly
indicate that habeas corpus can only be suspended by act of Congress.  That
is an inference some people have drawn from the fact that the relevant
language -- "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. " -- appears in Article I, the Legislative Branch article.
President Lincoln, believing that he faced an emergency, acted to suspend
habeas corpus without first calling Congress into special session; Congress
(if my memory serves) subsequently validated this act retrospectively.

Since in the 19th century Congress rarely met and transportation from
distant states was slow, Lincoln can be forgiven for his Hamiltonian
conclusion that this power was implicit in the Constitution.  (Cf. Walling,
_Republican Empire_)  His argument that he could rightfully do this
certainly was no weaker than the one that said, also despite the absence of
langauge making it explicit, that states had a right to secede.

Prof. K.R. Constantine Gutzman
Department of History
Western Connecticut State University

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