Some may take Attorney General Bates' phrase "If by the phrase the suspension of the privilege of the writ of habeas corpus, we must understand a repeal of all power to issue the writ, then I freely admit that none but Congress can do it" out of context by omitting the very next two sentences and think they've hit a home run. The very next two sentences are "But if we are at liberty to understand the phrase to mean, that, in case of a great and dangerous rebellion, like the present, the public safety requires the arrest and confinement of persons implicated in that rebellion, I as freely declare the opinion, that the President has lawful power to suspend the privilege of persons arrested under such circumstances. For he is especially charged by the Constitution with the "public safety," and he is the sole judge of the emergency which requires his prompt action."
If you noticed in Bates' preceding commentary he spoke of English law and habeas corpus. The main difference in the suspension of the privilege of the writ of habeas corpus under English law and under American law was in England when the privilege of the Writ was suspended, a judge was prohibited from issuing a writ of habeas corpus while in the United States, suspension of the privilege of the Writ meant that what is suspended is the privilege on the part of the arrested citizen to have the Writ obeyed. In other words, the judge could issue any number of writs of habeas corpus in the limited area of the suspension, but none of them would be acted on. The Congress is the only branch that has the power to suspend the issuance of the Writ and it must enact legislation to provide for that.When Andrew Jackson took it upon his self to suspend the privilege of the writ of habeas corpus in New Orleans he followed the English law and arrested a newspaper editor for anti-Jackson comments and for being critical of his martial law proclamation. Jackson refused to release the editor to the court when presented with a Writ of habeas corpus. Jackson then threatened to arrest the judge if he issued another Writ and when the judge issued the second Writ, Jackson immediately had him arrested and confined in the same military jail the newspaper editor was thrown in. Lincoln's suspension of the privilege of the Writ never affected the issuance of the Writ by a judge since that could only be enacted by Congress If you carefully read the entire comment of Bates in context, you'll see that the out of context quote is not what Bates concluded..