ly withheld for use on a
second attempt if the first failed.[1455] Where the Government did not
deny the allegation in a prisoner's fourth petition for _habeas corpus_,
but sought dismissal of the proceedings on the ground that the prisoner
had abused the writ, the prisoner was held to be entitled to a hearing
to determine whether the charge of abusive use of the writ was well
founded.[1456]

Suspension of the Privilege

A critical question under this section is who determines with finality
whether the circumstances warrant suspension of the privilege of the
writ. In England the writ may be suspended only by Act of
Parliament,[1457] and in an early case Chief Justice Marshall asserted
that the decision as to when public safety calls for this drastic action
depends "on political considerations, on which the legislature is to
decide."[1458] At the beginning of the Civil War Lincoln authorized the
Commanding General of the Army of the United States to suspend the writ
along any military line between Philadelphia and Washington.[1459] In Ex
parte Merryman,[1460] Chief Justice Taney strongly denounced the
President's action and reasserted the proposition that only Congress
could suspend the writ. Attorney General Bates promptly challenged
Taney's opinion. Noting that in Ex parte Bollman, Marshall did "not
speak of suspending the _privilege_ of the writ, but of suspending the
_powers vested in the Court_ by the act," he took the position that the
constitutional provision was itself the equivalent of an Act of
Parliament.[1461] Thereafter, by an express provision of the act of
March 3, 1863, Congress declared, "That, during the present rebellion,
the President of the United States, whenever, in his judgment, the
public safety may require it, is authorized to suspend the privilege of
the writ of _habeas corpus_ in any case throughout the United States, or
any part thereof."[1462] The validity of this statute was assumed in Ex
parte Milligan,[1463] but a narrow majority of the Court declared that
the suspension of the writ did not authorize the arrest of any one, but
simply denied to one arrested the privilege of the writ in order to
obtain his liberty.[1464]

Clause 3. No Bill of Attainder or ex post facto Law shall be passed.

BILLS OF ATTAINDER

Historically, the term "bills of attainder" was applied to "such special
acts of the legislature as inflict capital punishment upon persons
supposed to be guilty of high o