lly
rounded statement of his own theory regarding this problem, instead
of leaving it to be inferred from detached observations and from his
actions. Apparently, he felt there was nothing to do but to follow the
Roman precedent and, in a case of emergency, frankly permit the use
of extraordinary power. We may attribute to him that point of view
expressed by a distinguished Democrat of our own day: "Democracy has to
learn how to use the dictator as a necessary war tool."* Whether Lincoln
set a good model for democracy in this perilous business is still to be
determined. His actions have been freely labeled usurpation. The first
notorious instance occurred in 1861, during the troubles in Maryland,
when he authorized military arrests of suspected persons. For the
release of one of these, a certain Merryman, Chief Justice Taney
issued a writ of habeas corpus**. Lincoln authorized his military
representatives to disregard the writ. In 1862 he issued a proclamation
suspending the privileges of the writ of habeas corpus in cases of
persons charged with "discouraging volunteer enlistments, resisting
military drafts, or guilty of any disloyal practice...." Such persons
were to be tried by military commissions.

*President Edwin A. Alderman, of the University of Virginia.

** The Constitution permits the suspension of the privileges
of the writ of habeas corpus "when in cases of rebellion or
invasion the public safety may require it," but fails to
provide a method of suspension. Taney held that the power
to suspend lay with Congress. Five years afterward, when
Chase was Chief Justice, the Supreme Court, in ex parte
Milligan, took the same view and further declared that even
Congress could not deprive a citizen of his right to trial
by jury so long as the local civil courts are in operation.
The Confederate experience differed from the Federal
inasmuch as Congress kept control of the power to suspend
the writ. But both governments made use of such suspension
to set up martial law in districts where the local courts
were open but where, from one cause or another, the
Administration had not confidence in their effectiveness.
Under ex parte Milligan, both Presidents and both Congresses
were guilty of usurpation. The mere layman waits for the
next great hour of trial to learn whether this
interpretation will stand. In the Milliga