Page:Suspension of Habeas Corpus during the War of the Rebellion.djvu/29

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482
[Vol. III.
POLITICAL SCIENCE QUARTERLY.

hero, they said, and had conquered the British. Some admire Jackson because in spite of law and at the risk of his reputation he acted for the safety of his country. Others admire Judge Hall, because he upheld the dignity of the law against the despotism of a soldier. The precedent has become a most valuable one, for it can be cited on both sides. It is like the other instances of martial law in America. In the Revolution, Gage, the British general at Boston, declared martial law five days before the battle of Bunker Hill, and even his own countrymen thought it outrageous. An attempt was also made to declare it in Virginia during the Revolution, and nearly everybody thought it was outrageous.[1] The Declaration of Independence says that it was outrageous for the king to make the military superior to the civil power; and many of the state constitutions have said that the military shall never be superior to the civil power. Everything is against martial law, and yet whenever a president, king, or general is driven to extremities he will make use of it, and those who complain will complain in vain. He who declares martial law has already an army with which to enforce his decrees. After the emergency is past, if he has been successful and has not been cruel or reckless in its use, he will, in all probability, be forgiven; and the American people are among those most likely to forgive.[2]

And now suppose it to be proven that the President cannot lawfully suspend habeas corpus without authority from Congress, what have we gained? Very little. The fact remains, that for two years Lincoln suspended the writ, and arrested the enemies of the government as freely as if the right had been expressly given him.[3] People who objected were allowed the privilege of

  1. Washington fought the seven years of the Revolution to a successful end, and never made use of martial law at all.
  2. The other theory giving the President power to suspend habeas corpus was advocated by Reverdy Johnson of Baltimore. He maintained that the President could suspend in time of war as an incident of his office of commander-in-chief of the army and navy. The power to wage war implied, he said, the power to suspend the ordinary securities of liberty and property. But it is easy to see that this argument of Johnson's is nothing but martial law in a new form. It is simply a trick to get rid of the odious name of martial law by calling it commander-in-chief.
  3. The fact also remains that our liberties are unimpaired. The Union is restored, and life, liberty and property are as safe today as they were before the war.