arraying the people against the United States, to counteract it by "the bombardment of their cities, and, in the extremest necessity, the suspension of the writ of habeas corpus." This intimation that the suspension of the venerated writ was a measure graver than even bombarding a city, surely indicated sufficient respect for laws and statutes. The legislators restrained their rebellious ardor and proved the wisdom of Mr. Lincoln's moderation. In the autumn, however, the crisis recurred, and then the arrests seemed the only means of preventing the passage of an ordinance of secession. Accordingly the order was issued and executed. Public opinion upheld it, and Governor Hicks afterward declared his belief that only by this action had Maryland been saved from destruction.
The privilege of habeas corpus could obviously, however, be made dangerously serviceable to disaffected citizens. Therefore, April 27, the President instructed General Scott: "If at any point on or in the vicinity of any military line which is now, or which shall be, used between the city of Philadelphia and the city of Washington, you find it necessary to suspend the writ of habeas corpus for the public safety, you ... are authorized to suspend that writ." Several weeks elapsed before action was taken under this authority. Then, on May 25, John Merryman, recruiting in Maryland for the Confederate service, was seized and imprisoned in Fort McHenry. Chief Justice Taney granted a writ of habeas corpus. General Cadwalader
replied that he held Merryman upon a charge of treason, and that he had authority under the President's letter to suspend the writ. The chief justice thereupon issued against the general an attachment for contempt, but the marshal was refused admittance to the fort. The chief justice then filed with the clerk, and also sent to the President, his written opinion, in which he said: "I understand that the President not only claims the right to suspend the writ of habeas corpus at his discretion, but to delegate that discretionary power to a military officer;" whereas, according to the view of his honor, the power did not lie even with the President himself, but only with Congress. Warming to the discussion, he used pretty strong language, to the effect that, if authority intrusted to other departments could thus "be usurped by the military power at its discretion, the people ... are no longer living under a government of laws; but every citizen holds life, liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found." It was unfortunate that the country should hear such phrases launched by the chief justice against the President, or at least against acts done under orders of the President. Direct retort was of course impossible, and the dispute was in abeyance for a short time.[[145]] But the predilections
of the judicial hero of the Dred Scott decision were such as to give rise to grave doubts as to whether or not the Union could be saved by any process which would not often run counter to his ideas of the law; therefore in this matter the President continued to exercise the useful and probably essential power, though taking care, for the future, to have somewhat more regard for form. Thus, on May 10, instead of simply writing a letter, he issued through the State Department a proclamation authorizing the Federal commander on the Florida coast, "if he shall find it necessary, to suspend there the writ of habeas corpus."
In due time the assembling of Congress gave Mr. Lincoln the opportunity to present his side of the case. In his message he said that arrests, and suspension of the writ, had been made "very sparingly;" and that, if authority had been stretched, at least the question was pertinent: "Are all the laws but one to go unexecuted, and the government itself to go to pieces, lest that one be violated?" He, however, believed that in fact this question was not presented, and that the law had not been violated. "The provision of the Constitution, that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it, is equivalent to a provision that such privilege may be suspended when, in cases of
rebellion or invasion, the public safety does require it." As between Congress and the executive, "the Constitution itself is silent as to which or who is to exercise the power; and as the provision was plainly made for a dangerous emergency it cannot be believed that the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case by the rebellion."
If it was difficult, it was also undesirable to confute the President's logic. The necessity for military arrests and for indefinite detention of the arrested persons was undeniable. Congress therefore recognized the legality of what had been done, and the power was frequently exercised thereafter, and to great advantage. Of course mistakes occurred, and subordinates made some arrests which had better have been left unmade; but these bore only upon discretion in individual cases, not upon inherent right. The topic, however, was in itself a tempting one, not only for the seriously disaffected, but for the far larger body of the quarrelsome, who really wanted the government to do its work, yet maliciously liked to make the process of doing it just as difficult and as disagreeable as possible. Later on, when the malcontent class acquired the organization of a distinct political body, no other charge against the administration proved so plausible and so continuously serviceable
as this. It invited to florid declamation profusely illustrated with impressive historical allusions, and to the free use of vague but grand and sonorous phrases concerning "usurpation," "the subjection of the life, liberty, and property of every citizen to the mere will of a military commander," and other like terrors. Unfortunately men much more deserving of respect than the Copperheads, men of sound loyalty and high ability, but of anxious and conservative temperament, were led by their fears to criticise severely arrests of men who were as dangerous to the government as if they had been soldiers of the Confederacy.
May 3, 1861, by which time military exigencies had become better understood, Mr. Lincoln called "into the service of the United States 42,034 volunteers," and directed that the regular army should be increased by an aggregate of 22,714 officers and enlisted men. More suggestive than the mere increase was the fact that the volunteers were now required "to serve for a period of three years, unless sooner discharged." The opinion of the government as to the magnitude of the task in hand was thus for the first time conveyed to the people. They received it seriously and without faltering.
July 4, 1861, the Thirty-seventh Congress met in extra session, and the soundness of the President's judgment in setting a day which had at first been condemned as too distant was proved. In the interval, nothing had been lost which could have