Evening star. [volume] (Washington, D.C.) 1854-1972, 1940-09-22

known as Elk Parte Merryman.
In this case a prominent Baltimorean
had been arrested by the military on
charge of aiding the enemy and i'm
prisoned at Fort McHenry. He obtained
a writ of habeas corpus from Chief JUS
tice fancy. The Army ofiicer in charge
refused to recognize the writ on the
grounds that he was authorized by the
President to suspend habeas corpus for
the public safety. Justice fancy at once
issued an attachment for contempt, but
its service was prevented by the mill
tary. Thereupon, Justice fancy, by this
time in fear Of his life, filed an opinion
holding the suspension Of the writ by
the President to be In violation Of the
Constitution and ordered the clerk OF the
court to transmit copy Of the opinion
to the President. Lincoln ignored 1t.
Two years later the famous Milligan
case was instituted on somewhat similar
grounds. When 1t finally reached the
Supreme Court, after Lincoln's assassi-
nation the court unanimously held that
war conditions did not grant unlimited
powers to the President.
Milligan Case.
Lincolns boldest use of his power as
Commander in Chief was his issuance of
the Emancipation Proclamation on Sep
TENDER %, 1862. 1t was strictly a mill
tary measure. calculated to deprive the
enemy of valuable resource, and ac-
cordingly applied only to regions in
rebellion and not in slave States under
Federal control He did not even ask
the advice of his cabinet before acting.
Congress always mas recognized the
war and emergency powers Of the Presi-
dent and, while jealous of its own pre-
negatives, has followed the view of Chief
Justice Hughes. expressed in 1917:
War demands the highest degree Of
efficient organization, and Congress, in
the nature Of things, cannot prescribe
many important details as 1t legislates
for the purpose Of meeting the exigencies
of war;
It has been said by some persons,
notably Prof. Herbert w. Briggs, profess
sor Of international law at Cornell Uni
law of June %, 1910, intended to prevent
the President from transferring naval
and military equipment to Great Britain
without prior knowledge of Congress.
Intent of Law.
A reading of the congressional debates
and conversations with Senators do not
support this view. Attorney General
Jackson in his opinion for the President
held that June Is, 1917. statute did pre-
vent the administration from selling 20
mosquito boats" to Great Britain, but
testimony before the Senate Naval AZ
fairs Committee and subsequent debates
indicate that the intent of the pertinent
provisions of 1910 law was to unite the
hands of the Army and Navy in dis
posing of obsolete and unused equipment.
The later history of the destroyer deal
shows that the administration followed
the 1910 law to the letter after the At
torney Generals opinion had found an
unsupported loophole in the 1917 statute
which seemingly prevented the transfer.
What will Senators Walsh of Massa-
chusetts, Clark of Missouri, Wheeler of
Montana, Nye of North Dakota, Holt of
West Virginia and others do to prevent
the release of the mosquito boats"
flying fortresses and pursuit planes
should the President, as Commander in
Chief find that such releases are neces-
sary to protect our States from invasion?
Nothing, probably.
Their groups in the Senate and House
lack the votes to write an Affirmative
check on the Presidents underlined pow
ers, and they are afraid to make a par
liamentary move denouncing the de-
stroyer transaction because their defeat
would be called an indirect but public
Endorsement of the Roosevelt Churchill
negotiations.