l incoln’s s hadow 75
Following the rebel bombardment of Fort Sumter, Lincoln took
measures to deal with the widening crisis. As I noted earlier, he called
for short-term militia forces from the states, followed soon thereafter
with an appeal for volunteers to serve for three years; he declared a
blockade of Confederate ports; and he expanded the regular army and
navy. Some of these steps preempted powers explicitly granted to
Congress under the Constitution. Lincoln chose not to call Congress
into session immediately, preferring to wait until July to convene a
special session. He believed he had all necessary authority to act under
what he termed the “war power of the government,” a concept with no
historical precedent. Congress did approve of Lincoln’s initiatives as
soon as it met, conferring upon them a form of post hoc legitimacy that
helped them later withstand judicial scrutiny. Whether Lincoln had
to act without Congress is another matter, however. Spring congres-
sional elections were still under way as of April 1861, but this does not
seem to be a compelling justifi cation for the delay.
In the opening months of the war, moreover, Lincoln insisted that
the emergency gave him the authority to suspend civil liberties in the
Border States. Maryland appeared ready to secede, and arriving
northern troops were attacked in Baltimore. Lincoln authorized the
local commander to take preemptive measures to thwart secessionist
moves. However, although the president knew of strong secessionist
sympathies in the state legislature, he directed military offi cials not to
prevent it from convening. Instead, he imposed martial law in Mary-
land, under which secessionist sympathizers were arrested and held
without trial. Th is sparked Lincoln’s famous confrontation with Chief
Justice Roger Taney, in which Lincoln refused to comply with a writ of
habeas corpus when Taney ordered the release of a rebel suspect. I t
was the fi rst of several contested actions Lincoln took during the war
that violated established civil liberties. As a point of comparison,
Jeff erson Davis did not invoke the power to suspend habeas corpus
until the Confederate Congress gave its explicit authorization.
Lincoln would later extend his suspension of habeas corpus to cover
the entire North in September 1862, at which point he also authorized
martial law and military trials of all rebels, draft resisters, those discour-
aging volunteer enlistments, and anyone guilty of disloyal practices or
of giving aid and comfort to the rebels. Most of the 13,000 civilians