The resistance to the Government in New York was but the most terrible episode in a protracted contention which involves, as Americans are beginning to see, one of the most fundamental and permanent questions of Lincoln's rule: how can the exercise of necessary war powers by the President be reconciled with the guarantees of liberty in the Constitution? It is unfortunate that Lincoln did not draw up a fully rounded statement of his own theory regarding this problem, instead of leaving it to be inferred from detached observations and from his actions. Apparently, he felt there was nothing to do but to follow the Roman precedent and, in a case of emergency, frankly permit the use of extraordinary power. We may attribute to him that point of view expressed by a distinguished Democrat of our own day: "Democracy has to learn how to use the dictator as a necessary war tool."* Whether Lincoln set a good model for democracy in this perilous business is still to be determined. His actions have been freely labeled usurpation. The first notorious instance occurred in 1861, during the troubles in Maryland, when he authorized military arrests of suspected persons. For the release of one of these, a certain Merryman, Chief Justice Taney issued a writ of habeas corpus**. Lincoln authorized his military representatives to disregard the writ. In 1862 he issued a proclamation suspending the privileges of the writ of habeas corpus in cases of persons charged with "discouraging volunteer enlistments, resisting military drafts, or guilty of any disloyal practice...." Such persons were to be tried by military commissions.
*President Edwin A. Alderman, of the University of Virginia.
** The Constitution permits the suspension of the privileges of the writ of habeas corpus "when in cases of rebellion or invasion the public safety may require it," but fails to provide a method of suspension. Taney held that the power to suspend lay with Congress. Five years afterward, when Chase was Chief Justice, the Supreme Court, in ex parte Milligan, took the same view and further declared that even Congress could not deprive a citizen of his right to trial by jury so long as the local civil courts are in operation. The Confederate experience differed from the Federal inasmuch as Congress kept control of the power to suspend the writ. But both governments made use of such suspension to set up martial law in districts where the local courts were open but where, from one cause or another, the Administration had not confidence in their effectiveness. Under ex parte Milligan, both Presidents and both Congresses were guilty of usurpation. The mere layman waits for the next great hour of trial to learn whether this interpretation will stand. In the Milligan case the Chief Justice and three others dissented.
There can be little doubt that this proclamation caused something like a panic in many minds, filled them with the dread of military despotism, and contributed to the reaction against Lincoln in the autumn of 1862. Under this proclamation many arrests were made and many victims were sent to prison. So violent was the opposition that on March 3, 1863, Congress passed an act which attempted to bring the military and civil courts into cooperation, though it did not take away from the President all the dictatorial power which he had assumed. The act seems; however, to have had little general effect, and it was disregarded in the most celebrated of the cases of military arrest, that of Clement L. Vallandigham.
A representative from Ohio and one of the most vituperative anti-Lincoln men in Congress, Vallandigham in a sensational speech applied to the existing situation Chatham's words, "My lords, you cannot conquer America." He professed to see before him in the future nothing "but universal political and social revolution, anarchy, and bloodshed, compared with which the Reign of Terror in France was a merciful visitation." To escape such a future, he demanded an armistice, to be followed by a friendly peace established through foreign mediation.
Returning to Ohio after the adjournment of Congress, Vallandigham spoke to a mass-meeting in a way that was construed as rank treason by General Burnside who was in command at Cincinnati. Vallandigham was arrested, tried by court martial, and condemned to imprisonment. There was an immediate hue and cry, in consequence of which Burnside, who reported the affair, felt called upon also to offer to resign. Lincoln's reply was characteristic: "When I shall wish to supersede you I shall let you know. All the Cabinet regretted the necessity for arresting, for instance, Vallandigham, some perhaps doubting there was a real necessity for it; but being done, all were for seeing you through with it." Lincoln, however, commuted the sentence to banishment and had Vallandigham sent through the lines into the Confederacy.
It seems quite plain that the condemnation of Lincoln on this issue of usurpation was not confined to the friends of the Confederacy, nor has it been confined to his enemies in later days. One of Lincoln's most ardent admirers, the historian Rhodes, condemns his course unqualifiedly. "There can be no question," he writes, "that from the legal point of view the President should have rescinded the sentence and released Vallandigham." Lincoln, he adds, "stands responsible for the casting into prison of citizens of the United States on orders as arbitrary as the lettres-de-cachet of Louis XIV." Since Mr. Rhodes, uncompromising Unionist, can write as he does upon this issue, it is plain that the opposition party cannot be dismissed as through and through disunionist.
The trial of Vallandigham made him a martyr and brought him the Democratic nomination for Governor of Ohio*. His followers sought to make the issue of the campaign the acceptance or rejection of military despotism. In defense of his course Lincoln wrote two public letters in which he gave evidence of the skill which he had acquired as a lawyer before a jury by the way in which he played upon the emotions of his readers.