POLITICS MAY 19, 1917
War, as a social function, differs in kind, not merely in degree, from a croquet party or an afternoon tea. This important truth, apparently self-evident, is realized only with much travail by a peace-loving and peace-wonted people. For the present generation of Americans three years of fighting in Europe have done much to prepare our minds for the whole truth. Yet the din of preparation for our part in the great struggle does not drown the protests of those who are shuddering to see the conventionalities of the tea party shattered and ignored.
Even among those who are convinced that we were obliged to fight, there prevails more or less the notion that we must do it gingerly, with anxious consideration for the ways of liberty and law. The Kaiser, all agree, must be brought low, but editors wish to see it done without censorship of the press; professors and public-square orators expect the process to raise up no obstruction to the flow of words and even of ideas; there are those who hope that the whole enterprise may go on in the spirit of the Sermon on the Mount; Congressmen wish to see it finished without exaltation of the executive as compared with the legislative branch of the government.
These ideas per se are sound in political science, wise in law, admirable in Christian morality. It is well that they be thoroughly debated now at the opening of hostilities, and employed in shaping the course of legislation. Many people will expect them thus to have some appreciable effect on the actual conduct of the war. This faith is bound to suffer a grievous shock if, as is by no means impossible, the war shall prove to be a prolonged and hard-fought struggle. A disillusionment will come such as came during our War of Secession. In that strenuous time lofty ideals of liberty and law and cravings for the ways of Christian righteousness were freely proclaimed as the guides for action, but what determined the course of events when the struggle was at its fiercest was the judgment and will of Abraham Lincoln; and what will supersede in our present conflict, if necessary, the wishes of the good, the enactments of Congress and the opinion of the courts will be the will of Woodrow Wilson, constitutional "commander-in-chief of the army and navy of the United States, and of the militia of the several states when called into the actual service of the United States."
As the tension of our war with Germany increases, it will be strange if the precedents of the earlier time do not become continuously more controlling as a guide to executive action. The first steps of Lincoln to meet the emergency at the fall of Sumter were premonitory of the expansion of his authority. Having called out three months' militia, as he was empowered by law to do, he further ordered the enlistment of forty regiments of three-year volunteers and ten regiments of regulars--orders that were wholly without warrant in law. At the same time he manifested much less haste than Mr. Wilson has displayed in calling Congress to his aid. Lincoln's call for an extra session was issued on April 15th, but the date for the assembling of the legislators was fixed for July 4th, nearly three months later. This long interval reveals a singular lack of eagerness on the part of the President to have Congress on his hands.
Nor was the President's interest greater in winning the cooperation of the judiciary in the arduous task of suppressing an insurrection. Military officers and secret service agents began at once to seize persons suspected of disloyalty and commit them to custody in forts. Writs of habeas corpus were procured to release them, or at least to ascertain the charges against them; but the President ordered his commanders to deny the privilege of the writs, and a despairing protest against manifest illegality was all that could be opposed to the executive power by so exalted a judicial magistrate as the Chief Justice of the Supreme Court of the United States.
No issues such as those just referred to have yet arisen in connection with the inception of the present war. The formal declaration of hostilities, unlike the brutal acts of hostility that caused it, has conformed with nicety to all the requirements of constitutional and international law. Mr. Wilson has to deal at the outset with a war against a foreign nation, while Mr. Lincoln's task was assumed to be the dispersion of a gigantic mob. The arrests and imprisonments in 1917 affect alien enemies; those of 1861 affected citizens suspected of crime. There is no such occasion at present as there was in 1861 for the assumption of arbitrary authority by the executive. It is likely to be different when the conflict now beginning shall have entered a more furious stage.
The central and controlling fact in the whole matter of the President's power is the unobtrusive clause of the Constitution which makes him commander-in-chief of the army and navy. In time of war the commander of an army is practically a law unto himself, so far as concerns the ends to be gained by military force. His judgment gives the decision without appeal as to the means and methods of compelling the enemy to submission. The life, the liberty and the property of those subject to his orders must be sacrificed without hesitation at his word. All this, while terrible, is commonplace when associated with the thought of the chief of an army that is actively engaged against an enemy in the field. But the ascription of such authority to a President of the United States comes to us to-day with much of a jolt; and we do not wonder that to the people of the Civil-War time the birth and swift growth of the doctrine to maturity was viewed with deep alarm and foreboding.
For many months after the outbreak of the war in 1861 the arrest and imprisonment of citizens by mere administrative order was based, so far as any explanation was ever given, usually on charges or suspicion of assistance given to the Confederates. Any kind of connection with the South or its people put a man in the same position as that of the German-Americans to-day. The zeal of the government's secret service often outran its intelligence. At the same time the activity of the friends and agents of the Confederacy in the North was undeniably as extensive, if not as well organized and barbarous, as that of the Germans lately throughout America. In consequence of these conditions the number of "political" or "state" prisoners that crowded the forts and other places of detention became embarrassing. In February, 1862, a gaol delivery was undertaken by order of the President, not, however, by turning over the unfortunates to the civil courts, but by directing the Secretary of War to release on parole those whose release would not, in his judgment, imperil the public safety.
Mr. Lincoln, in this proceeding, stood firmly on the doctrine to which he remained faithful to the end, that it was the constitutional right and duty of the President to employ in wartime the autocratic authority of the military chief. Some of the prisoners to whom release was offered refused to subscribe the required parole and demanded either an unconditional release or the adjudication of the charges against them in open court, that their innocence might be established. The demand was refused. Damage to an individual's reputation by unexplained arrest, like damage to a court's dignity by contemptuous treatment of its writ of habeas corpus, was held to be a sad but necessary incident of the existence of war.
The complete unfolding of the powers in the commander-in-chief was reached during the year 1862, largely in connection with the two great policies of emancipation and conscription. The proclamation freeing the slaves was by its terms a military act pure and simple. Its character and effects, moral, legal and practical, would be paralleled to-day if President Wilson should issue a proclamation "by virtue of the power in [him] vested as commander-in-chief . . . and as a fit and necessary war measure," declaring that within certain designated states of Germany persons held to the obligation of military service of the Kaiser should henceforward be free. Such a measure would be, like Mr. Lincoln's, a spectacular rather than an immediately effectual manifestation of the war power.
In the measures relating to conscription, on the contrary, the heavy hand of the military chief fell directly and relentlessly upon every loyal district of the United States. Drafting to fill the quotas of states where volunteers no longer responded was resorted to in the summer of 1862. The proceedings were novel and unpopular. Legal obstacles and others of less orderly character appeared. It was the year of elections for Congress, and political opposition to the administration became demonstrative. Hostility to emancipation and to conscription blended with the old partisan hostility to the Republicans in general, and the Democrats took on the hue that has become historically that of the Copperhead. The crucial problem of popular government was precisely posed--Can the freedom of choice in the elections be preserved in time of civil or foreign war?
Mr. Lincoln's solution was, in part, a proclamation in September making subject to martial law not only all insurgents and their abettors, but also "all persons discouraging volunteer enlistments, resisting military drafts, or guilty of any disloyal practice affording aid and comfort to rebels." Such persons were to be tried and punished by court martial or military commission, and as to all persons arrested or held by any military authority, the writ of habeas corpus was suspended.
A moment's reflection on the possibilities of the phrases "discouraging enlistments," and "disloyal practice" enables any one to understand the scope of the authority formally assumed by the President in this proclamation. Neither phrase had any definition in either common or statute law. Whether the conduct of a private citizen fell under either or both of the phrases, was to be determined by a military commission; and a military commission was merely a board of officers appointed by the commander-in-chief and subject to his orders. The unlimited authority indicated by these considerations was and is the prerogative of the President of the United States in time of war. His power in his military capacity is as great as that of any monarch in the world. The exercise of such power by a man like Abraham Lincoln or like Woodrow Wilson is not likely to become general and intolerable tyranny. They are sensitive to the deeper currents of public sentiment and they are always conscious of that limit upon the absolute ruler that consists in the forbearance of his subjects. Not so the subordinates upon whom the administration of the army's business depends. Their duty is to carry out the orders of their superior, and to overcome by force whatever obstructs them. Nice discrimination between a political attack on the President as leader of a party and incitement to resistance to his authority as commander of the army, is never to be counted upon in the conduct of actual war. Here was the source of Mr. Lincoln's most vexatious trials, and here Mr. Wilson is likely to be put to the test when the enforcement of the draft is in progress during a political campaign.
The celebrated Vallandigham case in 1863 turned on just this point. This man was one of the most prominent Democrats of Ohio, and was campaigning for his party's nomination for governor of the state. For expressions in one of his speeches he was arrested by General Burnside, convicted by a military commission, and eventually, by direct order of the President, was sent through the lines into the Confederacy. Mr. Lincoln, though annoyed by the proceedings of his general in this case, stood by him and sought with some success to derive from it what patriotic political capital was possible. Later, however, when Burnside, with undiminished zeal, summarily suppressed the Chicago Times, the President promptly revoked the order.
There were occasions, naturally enough, when even Mr. Lincoln's great patience gave way, and he himself applied directly the full force of his absolute power. A conspicuous instance was in the tense days of May, 1864, when Grant's drive against Lee was showing losses appallingly disproportionate to its progress. In a sordid scheme to get profit by a shock to the stock market a forged call for more troops was foisted upon two New York papers, the World and the Journal of Commerce. As these were Democratic papers, it was assumed by the administration that the publication was a deliberate attempt to make capital for their party, and accordingly Mr. Lincoln immediately ordered the commander at Governor's Island to seize the editors and try them by military commission on the charge of treasonably giving aid and comfort to the rebels. The offices of the papers were held by soldiers for several days. Even when it became clear that the papers had been sinned against rather than sinning, neither the punishment of the forger (who proved to be a young journalist with influential Republican friends) nor the reparation to the editors was impressively just.
These two conspicuous episodes, like hundreds of minor cases throughout the country, exhibited the presidential power quite irrespective of what was conferred by legislation. Congress indeed enacted, as its successor is trying to enact to- day, statutes intended to regulate and in a measure restrict the exercise of the executive's war power. Their effect on the policy of the government was negligible, so long as hostilities lasted. A year after the fall of the Confederacy, however, they served to save from the gallows several citizens under sentence of death by military commission in Indiana, and enabled the Supreme Court of the United States to announce the opinion that such commissions were unlawful save where the regular civil tribunals were prevented from acting by the actual presence of contending armies.
The judgment of the court in this famous case (Ex pane Milligan) implied that much of President Lincoln's procedure in the loyal states by virtue of his war power had been unconstitutional. Applied in our conflict with Germany, it would mean that Mr. Wilson can use the full powers of a commander-in-chief--that is, apply martial law--in the United States only in case a German army or insurgent force occupies part of its territory. It will be a credulous soul, however, who will expect practice to be guided by this logic. Supreme Court decisions are no less silent than other law in the presence of arms. When two or three millions of our citizens are constituted an army, the will of its supreme commander will be in fact our law until the mission of that army is accomplished. Often we shall doubtless suspect his motives, question his judgment, resent his methods; but on penalty of losing civilization itself by the triumph of our enemies, his commands we must obey.