Maryland constitutional questions after Fort Sumter

[David Lockmiller]

According to the work titled The Life and Public Services of Abraham Lincoln, Sixteenth President of the United States, by Henry J. Raymond, Derby and Miller Publishers, New York, (1865), at pages 191-92, President Lincoln addressed much more completely this constitutional issue in his message to the extra session of Congress on July 4, 1861 as follows:

Soon after the first call for militia, it was considered a duty to authorize the Commanding-General, in proper cases, according to his discretion, to suspend the privilege of the writ of habeas corpus, or, in other words, to arrest and detain, without resort to the ordinary processes and forms of law, such individuals as he might deem dangerous to the public safety. This authority has been purposely exercised but very sparingly. Nevertheless, the legality and propriety of what has been done under it are questioned, and the attention of the country has been called to the proposition, that one who has sworn to “take care that the laws be faithfully executed,” should not himself violate them. Of course, some consideration was given to the question of power and propriety before this matter was acted upon. The whole of the laws which were required to be faithfully executed were being resisted, and failing of execution in nearly one-third of the states. Must they be allowed to finally fail of execution, even had it been perfectly clear that by the use of the means necessary to their execution some single law, made in such extreme tenderness of the citizen’s liberty that practically it relieves more of the guilty than of the innocent, should to a very limited extent be violated! To state the question more directly: Are all the laws but one to go unexecuted, and the Government itself go to pieces, lest that one be violated! Even in such a case, would not the official oath be broken if the Government should be overthrown, when it was believed disregarding this single law would tend to preserve it? But it was not believed that this question was presented. It was not believed that any law was 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 – is a provision – that such privilege may be suspended when, in case of rebellion or invasion, the public safety does require it. It was decided that we had a case of rebellion, and that the public safety does require the qualified suspension of the privilege of the writ which was authorized to be made. Now, it is insisted that Congress, and not the Executive, is vested with this power. But the Constitution itself is silent as to which or who is vested with this power; and as the provision was plainly made for a dangerous emergency, it cannot be believed the framers of the instrument intended 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.

No more extended argument is now offered, as an opinion, at some length, will probably be presented by the Attorney-General. Whether there be any legislation on the subject, and, if any, what, is submitted entirely to the better judgment of Congress.

The forbearance of this Government had been so extraordinary, and so long continued, as to lead some foreign nations to shape their action as if they supposed the early destruction of the National Union was probable. While this, on discovery, gave the Executive some concern, he is now happy to say that the sovereignty and rights of the United States are now everywhere practically respected by foreign powers; and a general sympathy with the country is manifested throughout the world.

The reports of the Secretaries of the Treasury, War, and the Navy, will give the information in detail deemed necessary and convenient for your deliberation and action; while the Executive and all the Department will stand ready to supply omissions, or to communicate new facts considered important for you to know.