opinion, in which he said:  “I understand that the President not only claims the right to suspend the writ of habeas corpus at his discretion, but to delegate that discretionary power to a military officer;” whereas, according to the view of his honor, the power did not lie even with the President himself, but only with Congress.  Warming to the discussion, he used pretty strong language, to the effect that, if authority intrusted to other departments could thus “be usurped by the military power at its discretion, the people ... are no longer living under a government of laws; but every citizen holds life, liberty, and property at the will and pleasure of the army officer in whose military district he may happen to be found.”  It was unfortunate that the country should hear such phrases launched by the chief justice against the President, or at least against acts done under orders of the President.  Direct retort was of course impossible, and the dispute was in abeyance for a short time.[145] But the predilections of the judicial hero of the Dred Scott decision were such as to give rise to grave doubts as to whether or not the Union could be saved by any process which would not often run counter to his ideas of the law; therefore in this matter the President continued to exercise the useful and probably essential power, though taking care, for the future, to have somewhat more regard for form.  Thus, on May 10, instead of simply writing a letter, he issued through the State Department a proclamation authorizing the Federal commander on the Florida coast, “if he shall find it necessary, to suspend there the writ of habeas corpus.”

In due time the assembling of Congress gave Mr. Lincoln the opportunity to present his side of the case.  In his message he said that arrests, and suspension of the writ, had been made “very sparingly;” and that, if authority had been stretched, at least the question was pertinent:  “Are all the laws but one to go unexecuted, and the government itself to go to pieces, lest that one be violated?” He, however, believed that in fact this question was not presented, and that the law had not been 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 that such privilege may be suspended when, in cases of rebellion or invasion, the public safety does require it.”  As between Congress and the executive, “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 that 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.”