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ing out. Lincoln's Government had at first to guard itself against dangerous plots which could be scented but not proved in Washington; later on it had to answer such questions as this: What should be done when a suspected agent of the enemy is vaguely seen to be working against enlistment, when an attack by the civil mob upon the recruits is likely to result, and when the local magistrate and police are not much to be trusted? There is no doubt that Seward at the beginning, and Stanton persistently, and zealous local commanders now and then solved such problems in a very hasty fashion, or that Lincoln throughout was far more anxious to stand by vigorous agents of the Government than to correct them.

Lincoln claimed that as Commander-in-Chief he had during the continuance of civil war a lawful authority over the lives and liberties of all citizens, whether loyal or otherwise, such as any military commander exercises in hostile country occupied by his troops. He held that there was no proper legal remedy for persons injured under this authority except by impeachment of himself. He held, further, that this authority extended to every place to which the action of the enemy in any form extended—that is, to the whole country. This he took to be the doctrine of English Common Law, and he contended that the Constitution left this doctrine in full force. Whatever may be said as to his view of the Common Law doctrine, his construction of the Constitution would now be held by every one to have been wrong. Plainly read, the Constitution swept away the whole of that somewhat undefined doctrine of martial law which may be found in some decisions of our Courts, and it did much more. Every Legislature in the British Empire can, subject to the veto of the Crown, enact whatever exceptional measures of public safety it thinks necessary in an emergency. The Constitution restricted this legislative power within the very narrowest limits. There is, moreover, a recognised British practice, initiated by Wellington and Castlereagh, by which all question as to the authority of martial law is avoided; a

governor or commander during great public peril is encouraged to consider what is right and necessary, not what is lawful, knowing that if necessary there will be enquiry into his conduct afterwards, but knowing also that, unless he acts quite unconscionably, he and his agents will be protected by an Act of Indemnity from the legal consequences of whatever they have done in good faith. The American Constitution would seem to render any such Act of Indemnity impossible. In a strictly legal sense, therefore, the power which Lincoln exercised must be said to have been usurped. The arguments by which he defended his own legality read now as good arguments on what the law should have been, but bad arguments on what the law was. He did not, perhaps, attach extreme importance to this legal contention, for he declared plainly that he was ready to break the law in minor matters rather than let the whole fabric of law go to ruin. This, however, does not prove that he was insincere when he pleaded legal as well as moral justification; he probably regarded the Constitution in a manner which modern lawyers find it difficult to realise; he probably applied in construing it a principle such as Hamilton laid down for the construction of statutes, that it was "qualified and controlled" by the Common Law and by considerations of "convenience" and of "reason" and of the policy which its framers, as wise and honest men, would have followed in present circumstances; he probably would have adapted to the occasion Hamilton's position that "construction may be made against the letter of the statute to render it agreeable to natural justice."

In the exercise of his supposed prerogative Lincoln sanctioned from beginning to end of the war the arrest of many suspected dangerous persons under what may be called "letters de cachet" from Seward and afterwards from Stanton. He publicly professed in 1863 his regret that he had not caused this to be done in cases, such as those of Lee and Joseph Johnston, where it had. not been done. When agitation arose on the matter in

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the end of 1862 many political prisoners were, no doubt
wisely, released. Congress then proceeded, in 1863, to
exercise such powers in the matter as the Constitution
gave it by an Act suspending, where the President thought
fit, the privilege of the writ of habeas corpus. A decision
of the Supreme Court, delivered curiously enough by
Lincoln's old friend David Davis, showed that the real
effect of this Act, so far as valid under the Constitution,
was ridiculously small (see Ex parte Milligan, 4 Russell,
2). In any case the Act was hedged about with many
precautions. These were entirely disregarded by the
Government, which proceeded avowedly upon Lincoln's
theory of martial law. The whole country was eventually
proclaimed to be under martial law, and many persons
were at the orders of the local military commander tried
and punished by court-martial for offences, such as the
discouragement of enlistment or the encouragement of
desertion, which might not have been punishable by the
ordinary law, or of which the ordinary Courts might not
have convicted them. This fresh outbreak of martial
law must in large part be ascribed to Lincoln's determina-
tion that the Conscription Act should not be frustrated;
but apart from offences relating to enlistment there was
from 1863 onwards no lack of seditious plots fomented
by the agents of the Confederacy in Canada, and there
were several secret societies, "knights" of this, that, or
the other. Lincoln, it is true, scoffed at these, but very
often the general on the spot thought seriously of them,
and the extreme Democratic leader, Vallandigham,
boasted that there were half a million men in the North
enrolled in such seditious organisations. Drastic as the
Government proceedings were, the opposition to them
died down before the popular conviction that strong
measures were necessary, and the popular appreciation
that the blood-thirsty despot " King Abraham I.," as some
Democrats were pleased to call him, was not of the stuff
of which despots were made and was among the least
blood-thirsty men living. The civil Courts made no at-
tempt to interfere; they said that, whatever the law, they

could not in fact resist generals commanding armies. British Courts would in many cases have declined to interfere, not on the ground that the general had the might, but on the ground that he had the right; yet, it seems, they would not quite have relinquished their hold on the matter, but would have held themselves free to consider whether the district in which martial law was exercised was materially affected by the state of war or not. The legal controversy ended in a manner hardly edifying to the layman; in the course of 1865 the Supreme Court solemnly tried out the question of the right of one Milligan to a writ of habeas corpus. At that time the war, the only ground on which the right could have been refused him, had for some months been ended; and nobody in court knew or cared whether Milligan was then living to enjoy his right or had been shot long before.

Save in a few cases of special public interest, Lincoln took no personal part in the actual administration of these coercive measures. So great a tax was put upon his time, and indeed his strength, by the personal consideration of cases of discipline in the army, that he could not possibly have undertaken a further labour of the sort. Moreover, he thought it more necessary for the public good to give steady support to his ministers and generals than to check their action in detail. He contended that no great injustice was likely to arise. Very likely he was wrong; not only Democrats, but men like Senator John Sherman, a strong and sensible Republican, thought him wrong. There are evil stories about the secret police under Stanton, and some records of the proceedings of the courtsmartial, composed sometimes of the officers least useful at the front, are not creditable. Very likely, as John Sherman thought, the ordinary law would have met the needs of the case in many districts. The mere number of the political prisoners, who counted by thousands, proves nothing, for the least consideration of the circumstances will show that the active supporters of the Confederacy in the North must have been very numerous. Nor does it matter much that, to the horror of some

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people, there were persons of station, culture, and re-
spectability among the sufferers; persons of this kind
were not likely to be exposed to charges of disloyal con-
duct if they were actively loyal. Obscure and ignorant
men are much more likely to have become the innocent
victims of spiteful accusers or vile agents of police.
Doubtless this might happen; but that does not of itself
condemn Lincoln for having maintained an extreme form
of martial law. The particular kind of oppression that
is likely to have occurred is one against which the normal
procedure of justice and police in America is said to-day
to provide no sufficient safeguard. It is almost certain
that the regular course of law would have exposed the
public weal to formidable dangers; but it by no means.
follows that it would have saved individuals from wrong.
The risk that many individuals would be grievously
wronged was at least not very great. The Government
was not pursuing men for erroneous opinions, but for
certain very definite kinds of action dangerous to the
State. These were indeed kinds of action with which
Lincoln thought ordinary Courts of justice "utterly in-
competent " to deal, and he avowed that he aimed rather
at preventing intended actions than at punishing them
when done. To some minds this will seem to be an atti-
tude dangerous to liberty, but he was surely justified
when he said, In such cases the purposes of men are
much more easily understood than in cases of ordinary
crime. The man who stands by and says nothing when
the peril of his Government is discussed cannot be mis-
understood. If not hindered, he is sure to help the
enemy, much more if he talks ambiguously-talks for his
country with 'buts' and 'ifs' and 'ands.'" In any case,
Lincoln stood clearly and boldly for repressing speech or
act, that could help the enemy, with extreme vigour and
total disregard for the legalities of peace time. A little
later on we shall see fully whether this imported on his
part any touch whatever of the ferocity which it may
seem to suggest.


The Democratic opposition which made some headway

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