Sunday, June 28, 2009

'This Is Essentially A People's Contest'

24th of 45 excerpts from Lincoln by David Herbert Donald:
Even touchier was [Lincoln's] decision [in 1861] to suspend the privilege of the writ of habeas corpus, an action that touched on the power both of the legislative and the judicial branches of government. In neither law nor precedent was it clear where the authority for such suspension lay. The constitutional provision concerning suspension appeared in Article I, detailing the powers of Congress, but whether the Philadelphia convention had placed it there to identify it as purely legisative function or for stylistic reasons because it did not fit elsewhere was unclear and subsequently became a matter of great controversy in the Congress and among legal experts.

Belief that only Congress had the right to suspend the writ was the basis for Chief Justice Taney's fulminations against the President in his Merryman ruling. Lincoln made no reply at the time, but in his message to Congress the President pointed out that the Constitution was silent as to who was to exercise the power of suspending the writ and claimed that in a dangerous emergency when the Congress was not in session the Chief Executive was obliged to act. "It was not believed that any law was violated," he added. Then he went on to suggest that "such extreme tenderness of the citizen's liberty" as Taney (photo, below right) had shown could lead to the danger of allowing "all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated."

The next year would see greater infringements on individual liberties than in any other period in American history. Repeatedly the writ of habeas corpus was suspended in localities where secession seemed dangerous, and on September 24, 1862, and again on September 15, 1863, Lincoln suspended the privilege of the writ throughout the country. Initially control of the arbitrary arrests of civilians was given to the Secretary of State, and by best count, 864 persons were imprisoned and held without trial in the first nine months of the war. After February 1862, when such arrests became the province of the Secretary of War, the number of cases greatly increased. Most of the persons so arrested were spies, smugglers, blockade-runners, carriers of contraband goods, and foreign nationals; only a few were truly political prisoners, jailed for expressing their beliefs. It was nevertheless clear from Lincoln's first message to Congress that devotion to civil liberties was not the primary concern of the administration.

In his July 1961 message Lincoln palliated such transgressions of constitutional niceties because of the importance of the struggle in which the country was engaged. At issue in the contest was more than the fate of the United States. Anticipating a phrase he would use two years later in the Gettysburg Address, he suggested, "It presents to the whole family of man, the question, whether a constitutional republic, or a democracy -- a government of the people, by the same people -- can, or cannot, maintain its territorial integrity, against its own domestic foes." More, even, than that, it was a struggle for the rights of man. "This," he told Congress, "is essentially a People's contest. On the side of the Union, it is a struggle for maintaining in the world, that form, and substance of government," whose leading object is, to elevate the condition of men -- to lift artificial weights from all shoulders -- to clear the paths of laudable pursuit for all -- to afford all, an unfettered start, and a fair chance, in the race of life."

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