Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/2

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SUSPENSION OF HABEAS CORPUS.

beyond a reasonable doubt. In such a crisis some arbitrary power must be given. The sovereign, whether king, president, or legislature, must be allowed to arrest on suspicion, without giving reasons; and in doing this, to preserve the balance between the liberty of the citizen and the safety of the government is one of the great problems of political science.

Whether it is the President or Congress that has power under the constitution to suspend the privilege of the writ of habeas corpus was a burning question during the civil war. When Lincoln became President in the spring of 1861 he found the Southern states in rebellion against the general government, and to subdue them and bring them back into the Union he conceived to be the duty of his office. Against the enemy in the rebellious states he employed the army and the navy, and against those individuals who in the North gave aid and comfort to the enemy and plotted to betray the government he employed the power of arrest and imprisonment. Like many others who have been placed in a similar predicament he found that the procedure of the courts was insufficient. There were men in Baltimore, Philadelphia and New York, in the cities of the West, in the departments at Washington, and in the White House itself who were ready and eager to hand over the government's property and strongholds to the rebels, and had laid their plans with that intent. Their schemes must be forestalled, their conspiracy killed before it blossomed. But none of them could be convicted by a court of law until they had committed an overt act. If arrested on mere suspicion they would be promptly discharged by a habeas corpus. The remedy for this state of affairs is to get rid of the troublesome writ; and this Lincoln proceeded to do. He began to arrest, without any warrant from a magistrate and usually by a military officer, those whom he suspected of treasonable designs, and he instructed the officers who had the prisoners in charge to disregard any writ of habeas corpus that was issued to them and to say that he had suspended it.[1] The case of John Merryman, one

  1. It was on the 27th of April, 1861, that Lincoln addressed to General Scott his first suspending order: