Page:Lincoln's Suspension of Habeas Corpus.djvu/11

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SELLERY—LINCOLN'S SUSPENSION OF HABEAS CORPUS.

"Other calls were made for volunteers to serve for three years, unless sooner discharged, and also for large additions to the regular Army and Navy. These measures, whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then as now that Congress would readily ratify them. It is believed that nothing has been done beyond the constitutional competency of Congress.

"Soon after the first call for militia, it was considered a duty to authorize the commanding general in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus, or, in other words, to arrest and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety. This authority has purposely been exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition that one who is sworn to 'take care that the laws be faithfully executed' should not himself violate them. Of course some consideration was given to the questions of power and propriety before this matter was acted upon.[1] The whole of the laws which were required to be faithfully executed were being resisted, and failing of execution in nearly one third of the States. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their

  1. The subject of habeas corpus suspension appears to have been first debated by President and Cabinet when the special session of the Maryland Legislature, called for April 26, was under consideration. It was believed that the Legislature would probably attempt some act of secession. The question was would it not be wise to prevent the meeting of the Legislature. The President decided, after Attorney-General Bates had submitted his legal notes and other Cabinet officers had given their advice, that it would be neither justifiable nor effective to take the proposed action against the Legislature, which had, he said, clearly a legal right to assemble. April 25, he gave his special directions to General Scott: "I therefore conclude that it is only left to the commanding general to watch and await their action, which, if it shall be to arm their people against the United States, he is to adopt the most prompt and efficient means to counteract, even if necessary to the bombardment of their cities, and, in the extremest necessity, the suspension of the writ of habeas corpus." Works, vol. II, p. 38; Nicolay and Hay, vol. IV, p. 167. No authority was exercised under this order. Such an attitude toward suspension must have seemed strange a few months later.