What Was Proclamation 104? Lincoln’s Habeas Corpus Suspension

Proclamation 104 was a presidential proclamation issued by Abraham Lincoln on September 15, 1863, suspending the privilege of the writ of habeas corpus throughout the entire United States for specified categories of military-related detainees. It was the broadest of Lincoln’s Civil War suspension orders, the first to rest on explicit congressional authorization, and it remained in force until President Andrew Johnson declared the insurrection over on August 20, 1866.

What Proclamation 104 Did

The proclamation suspended the privilege of the writ of habeas corpus nationwide for five categories of people held by military, naval, or civil authority:

Prisoners of war, spies, and aiders or abettors of the enemy.
Officers, soldiers, and seamen enrolled, drafted, or enlisted in the armed forces.
Deserters from the United States military.
Persons otherwise subject to military law, including the rules and articles of war or regulations prescribed by the president.
Persons resisting the draft or charged with any other offense against military or naval service.

The suspension was to last for the duration of the rebellion or until revoked by a later proclamation. Secretary of State William H. Seward co-signed the document.¹

In practical terms, a person falling within one of these categories who was arrested by military or federal authorities could not use a habeas corpus petition to force the government to justify the detention before a civilian court. The writ itself was not abolished; a court could still examine whether a particular detainee actually fell within the terms of the suspension, a point the Supreme Court would later confirm.

The Legal Authority Behind the Proclamation

Proclamation 104 cited two sources of authority: the Constitution’s Suspension Clause and the Habeas Corpus Suspension Act of 1863.¹

Article I, Section 9, Clause 2 of the Constitution provides that the privilege of the writ “shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”² Because that clause sits within the article defining congressional powers, most legal authorities have long concluded that only Congress may authorize a suspension.³

Congress supplied that authorization on March 3, 1863. The Habeas Corpus Suspension Act empowered the president to suspend the privilege of the writ “in any case throughout the United States, or any part thereof” whenever public safety required it during the rebellion.⁴ The statute also built in procedural safeguards intended to prevent indefinite detention without charge:

The Secretaries of State and War were required to give federal judges lists of political prisoners held under presidential or departmental authority, excluding prisoners of war.
If a grand jury ended its session without indicting a listed prisoner, the judge was required to order that prisoner discharged.
Discharged prisoners had to take an oath of allegiance and could be required to post bond for good behavior.
Officers who refused or delayed a discharge order faced a misdemeanor charge, a fine of at least $500, and at least six months in prison.

The Act also shielded federal officers from personal liability. Any order of the president could be used as a defense in civil or criminal suits arising from wartime arrests or seizures, and defendants could remove such cases from state to federal court.⁴

Compliance with the safeguards was poor. Historian Mark E. Neely Jr., whose Pulitzer Prize–winning study The Fate of Liberty is the standard work on Civil War detentions, found that with one possible exception, no prisoner lists were ever turned over to the courts as the Act required. Executive officials were either unfamiliar with the Act’s terms, read them narrowly, or simply did not comply.⁵

How It Differed From Lincoln’s Earlier Suspensions

Proclamation 104 was not Lincoln’s first suspension order. He had begun issuing them within weeks of Fort Sumter. On April 27, 1861, he directed General Winfield Scott to suspend the writ along the military corridor between Philadelphia and Washington.⁶⁵⁷⁸

Two things set Proclamation 104 apart. First, it rested on statutory authority from Congress, not on Lincoln’s contested claim of unilateral executive power. Second, its categories were tied to military service, the draft, and enemy activity rather than to a broader net of “disloyal” civilians. It was geographically wider than the 1861 orders and legally firmer than Proclamation 94, but its listed categories were more defined than the martial-law language of the year before.

How It Was Used

The exact number of civilians arrested under Lincoln’s various suspension orders will never be known. Records were incomplete or never kept in a systematic way. Neely’s research put the figure at “well over 4,000,” which he found exceeded earlier estimates.⁵ Most detentions were short and were based on suspicion of what a person “probably would be done” rather than on a defined criminal act. The system operated as a tool of preventive military custody, not as a substitute for criminal prosecution.⁹

When and How the Suspension Ended

Proclamation 104 provided that the suspension would last for the duration of the rebellion or until revoked. Lee’s surrender in April 1865 and Lincoln’s assassination that same month did not, by themselves, end it. The formal end came on August 20, 1866, when President Andrew Johnson issued Proclamation 157, declaring that the insurrection in Texas, the final holdout state, was over and that “peace, order, tranquillity, and civil authority now exist in and throughout the whole of the United States of America.” Johnson stated that “standing armies, military occupation, martial law, military tribunals, and the suspension of the writ of habeas corpus are in time of peace dangerous to public liberty” and should not be sanctioned except in cases of actual necessity.¹⁰

The Supreme Court’s Reckoning in Ex Parte Milligan

The most important legal challenge to the kind of detention Proclamation 104 enabled came after the war. Lambdin P. Milligan, an Indiana civilian with no military connection, had been arrested in October 1864, tried by a military commission in Indianapolis, and sentenced to death. Federal courts in Indiana had remained open and functioning throughout his detention, including the empaneling of grand juries.¹¹

In a unanimous 1866 decision, the Supreme Court ordered Milligan’s release. Justice David Davis, writing for the majority, held that military commissions have no jurisdiction to try civilians in a state that is not invaded and not in rebellion when federal courts are open and operating. The Constitution’s guarantee of trial by jury, the Court declared, “is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” The majority also held that suspending the privilege of habeas corpus does not suspend the writ itself; courts retain the power to examine whether a detainee falls within the terms of the suspension.¹²

Chief Justice Salmon P. Chase wrote a concurrence, joined by three other justices, that agreed Milligan’s trial was illegal but took a different view of congressional power. Chase argued that Congress did possess the authority to authorize military tribunals for civilians even where courts were open, in places of “great and imminent public danger,” and that the majority opinion was “calculated, though not intended, to cripple the constitutional powers of the government” during future emergencies. The concurrence agreed, however, that neither the president nor military commanders could establish such tribunals without congressional sanction.¹³

Since the Civil War, the writ of habeas corpus has been suspended only three more times: in eleven South Carolina counties during Reconstruction to combat the Ku Klux Klan in 1871, in two Philippine provinces during a 1905 insurrection, and in Hawaii after the attack on Pearl Harbor. In each instance, Congress provided the authorization.¹⁴

1
The American Presidency Project. Proclamation 104 — Suspending the Writ of Habeas Corpus Throughout the United States
2
Constitution Annotated. Writ of Habeas Corpus
3
Cornell Law Institute. Writ of Habeas Corpus and the Suspension Clause
4
GovInfo. Habeas Corpus Suspension Act
5
TCU. The Fate of Liberty
6
Architect of the Capitol. Order From President Abraham Lincoln to General Winfield Scott Suspending the Writ of Habeas Corpus
7
The American Presidency Project. Proclamation 94 — Suspending the Writ of Habeas Corpus
8
Center for Civic Education. Proclamation Declaring Martial Law and Suspending Habeas Corpus for Certain Persons
9
UC Berkeley School of Law. Chapter 7
10
The American Presidency Project. Proclamation 157 — Declaring That Peace, Order, Tranquillity, and Civil Authority Now Exists
11
Oyez. Ex Parte Milligan
12
Justia. Ex Parte Milligan, 71 U.S. 2
13
Teaching American History. Ex Parte Milligan Concurrence
14
National Constitution Center. Suspension Clause