Continuing his speech, Lincoln tells Congress he had no other recourse than fighting to defend the Union, and calling upon his War Powers as President.
"No choice was left but to call out the war power of the Government; and so to resist force, employed for its destruction, by force, for its preservation"
What powers a President can use during a time of war is a matter of some debate. Some other famous examples of Presidents broadening their powers during a time of war would include Franklin Roosevelt's government-led internment of Japanese-American citizens during World War Two, the Wilson administration's arrest of thousands during World War One under the Espionage Act, and President George W. Bush's actions after the September 11th attacks, which included expanded domestic surveillance and suspension of habeas corpus for 'enemy combatants', among others. Click on the blue links for information about each.
Next, Lincoln tells what powers he used:
"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."
He is telling Congress that he gave leeway to commanding officers to suspend habeas corpus if necessary for public safety, but that...
"This authority has purposely been exercised but very sparingly."
He acknowledges criticism of this action next:
"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 is sworn to ``take care that the laws be faithfully executed,'' should not himself violate them."
Lincoln tells Congress that he did consider these criticisms, but that it was necessary to maintain the Union:
"Of course some consideration was given to the questions 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?"
This is an interesting statement. Lincoln is saying that in order to uphold the rule of law and public safety, he had to take away a right that would not effect most Americans. The phrase 'extreme tenderness of the citizen's liberty' also functions to frame the right he is taking away to be an extreme right, and not a right that is more obviously used in daily life by citizens. This is in direct opposition to Roger Taney's opinion that the writ of habeas corpus was considered very important by the Founding Fathers. What do you think?
Next, the President makes his case that he has the power to suspend habeas corpus in times of crisis. As you read the excerpt, determine whether you think Lincoln has a sound legal argument or not:
"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 cases of rebellion, or invasion, the public safety does require it. It was decided that we have 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."
Lincoln directly confronts the opinion expressed by Justice Taney and other critics that Lincoln has acted unconstitutionally because only Congress can suspend habeas corpus due to its presence in Article I of the Constitution:
"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 to exercise the power; and as the provision was plainly made for a dangerous emergency, it cannot be believed 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."
So what do you think? Did Lincoln convince you that he has this power as President during time of rebellion?
Lincoln closes the speech by giving what could be construed as an apology to Congress for having invoked powers that he says he normally would not call upon, but are required by the necessity to defend the Union: