CHAPTER X.

WHAT THE EXECUTIVE POWER BECAME UNDER MR.

LINCOLN.

HE observations made in the preceding chap

TH

ters with regard to the prerogatives of the executive would be incomplete without an attempt to explain the transformation they underwent during the civil war. We must remark their sudden expansion, and in what manner those who sustained the executive found means to supply him with all the required resources to resist the attacks which imperiled the existence of the United States.

On the 4th of March, 1861, when Mr. Lincoln delivered his inaugural address, it might have seemed as if the federal government was destroyed. Although the President said, "I consider that the Union is unbroken, and to the extent of my ability I shall take care, as the Constitution itself expressly enjoins upon me, that the laws of the Union be faithfully executed in all the States," he, however, added that he would take no steps that would have the effect to bring on a war; so he

confined himself to an appeal to misguided citizens, and to a masterly argument to prove that the Constitution interdicted their going out of the Union. Under circumstances of such gravity, never had the head of a government expressed himself with greater reserve nor taken a more modest attitude. He seemed to feel that all the constitutional organization of the United States was on the point of dissolution.

Six weeks later the secessionists fired the first gun at Fort Sumter. The President met this provocation by measures of defense. He immediately called forth 75,000 men under arms, convoked Congress, and declared the blockade of the ports of the South. War was commenced. In reality, in this, the most trying period in the history of the United States, in deciding that the Union should be defended by force of arms, he simply carried into effect the will of the people. Already, for several months, in the midst of the confusion attending the last months of Mr. Buchanan's administration, the Northern States appeared to realize that war was inevitable, and in many respects commenced preparing for it. The politicians, alarmed at impending events, met and tried to effect a compromise. During this time, when the Southern States were preparing to act, contemporary documents prove that the citizens of the North were learning to handle arms, assembling by companies

and regiments, and seeking in advance for men to lead them. This, so to speak, preliminary work accounts for what took place in the country from the moment that Mr. Lincoln decided the question and resolved to resist force by force, and explains why the people of the North showed themselves ready to face the crisis.

From the beginning of hostilities, and as a logical sequence of them, all the powers which attach to belligerence inured to the government and were at once called into exercise. A former President of the United States once said in the House of Representatives: "There are, then, in the authority of Congress and of the executive, two classes of powers, altogether different in their nature and often incompatible with each other—the war power and the peace power. The peace power is limited by regulations and restricted by provisions prescribed within the Constitution itself. The war power is limited only by the laws and usages of nations. This power is tremendous; it is strictly constitutional, but it breaks down every barrier so anxiously erected for the protection of liberty, of property and of life."

There are, indeed, adds the speaker, powers of peace conferred upon Congress which also come within the scope amd jurisdiction of the laws of nations, such as the negotiation of treaties of amity and commerce, the interchange of public ministers

and consuls, and all the personal and social intercourse between the individual inhabitants of the United States and foreign nations, and the Indian tribes, which require the interposition of any law. But the powers of war are all regulated by the laws of nations, and are subject to no other limitation."1 Thus, at the breaking forth of hostilites Mr. Lincoln was thereby invested with extraordinary powers; and here a constitutional provision will enable us still better to define his novel situation. Section II. of article 2 says: "The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the sev eral States when called into the actual service of the United States.". However, these powers were not exerted without giving rise to violent discussions. Even among those who scarcely questioned Mr. Lincoln's right to take all the necessary measures for the reconstruction of the Union and the provisional administration of the conquered territory many disagreed with him as to whether the loyal States should be subjected during the continuance of the war to an exceptional régime, and as to his authority to suspend the privilege of the writ of habeas corpus, and try, by military commissions, citizens accused of political crimes.

And on these points the best minds may readily differ. The Constitution had foreseen that

1 Speech delivered by Mr. John Quincy Adams in the House of Representatives, 26th May, 1836.

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the public necessities might require a suspension of the writ of habeas corpus, but does not declare whether in that event Congress alone has the power to authorize it. However, without regarding the precedents which seemed to decide that the whole matter was within the exclusive province of that body, the President, after having consulted the Attorney-general, took the initiative, and issued a proclamation suspending the writ in certain States. A serious contest then arose between him and the judiciary, represented by the Chief Justice of the United States. The latter, in a case pending before him, decided that the measure was illegal, but acknowledged his inability to cause his opinion and judgment to be carried into effect.

It

In fact, the executive triumphed over the judiciary; but the question regarding the power thus exercised remained in abeyance until March 3, 1863. It was only then that Congress passed an act which sanctioned the then existing state of things. legalized any arrest or imprisonment during the rebellion which had been made or committed under the authority of the President, and authorized him, whenever in his judgment the public safety might require it, to suspend the privilege of the writ in any case throughout the United States. Reasons in support of this stringent policy were certainly not wanting. Disloyal movements in several of the Northern States urgently required vigilant super