The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1861-07-29

because for every instance in which the President executes
the judgment OF court, there hundred instances IN
which he executes the law without the intervention Of the
Judiciary and without referring all its functions.
lhave promised this much order show the separate
ana maependea character Of the several Oh
our government and 10 Indicate the inevitable differences
In their modes Of action and the diversity
o. he subjects upon which they operate and oil this as
iouhda'ion Tor the answers which will now proceed 10
! give TO the particular questions propounded to me-
AS TO the first question: clearly OF opinion that in
time like the present when the very existence Of the
nation assaled by great and dangerous Instruction.
The President has the lawful discretionary to ares
and hold in custody persons known TO have criminal in
tercourfe with the insurgents persons against whom
there is probable for suspicion OF such criminal
completely And think this position Dan be maintained,
| plain argument.
The constitution requires the President before he enters
upon the execution OF his Office to take oath that no
faithfully execute the office Of President OF the United
States and will TO tho best Of his ability preserve protect
and defend the constitution of the United States"
The duties OF the office comprehend all tho executive
power Of the nation Which is expressly vested in the
President by the constitution article section also,
all the powers which specially delegated the Presi
dent aud yet not In their nature executive powers
For example, the veto power the treaty making power
the appointing power; the pardoning power These be-
long 70 that class which IN England called preroga
tive p"wers, inherent IN the And yet the trainers
OF our constitution thought proper to preserve hem ard
vest them Ia the President as necessary TO the good
government OF the country. The executive powers
granted generally, and without specifications the powers
not executive granted specially and for purposes OBJ
viocs IA the context Of the constitution And all these
are embraced within the duties OF the President and
clearly within that clause Of his oath which requires him
to faithfully execute the Office Of President"
The last clause Of the oath Is peculiar TO the President
Al the other officers Of government required
only $40 support this constitution while the President
mrst swear 10 preserve protect and defend" IT, which
implies the power TO perform what he is required in
solemn manner TO undertake And then follows the
broad and compenous injunction to stake that the
laws be faithfully executed" And this injunction
bracing as it does all the laws-consttuton treaties,
statutess addressed TO the President alone, and
any other department officer Of the government And
tins cons tntcs him. in peculiar manner and above all
other officers the guardian Of the consutonits pre-
server, protector, and defender.
It is the plain duty of the President (and his peculiar
duty, above and beyond all other departments OF the
govetnnent to preserve the constitution and the
laws all over the nation; and il plainly impossible for
him to perform this duty without putting down
rebellion, msurrection and all unlawful combinations
resist the general government. The duty suppress the
instruction being obvious and imperative the two
Congress of 1895 and 1907 come 10 his aid ana fur
nish the physical force which no needs suppress the
instruction and execute the laws. Those two acts
authorize the President TO employ for that purpose the
militia, the army and the navy
The argument may be briefly stated thus 1t is the
Presidents bounden duty 10 down the nsur ection
Gin the language Of the act Of 1881 the combinations
are TOO powerful 10 be suppressed by the ordinary course
OF judicial proceedings or by the powers vested in the
for the very reason that the courts and the marshais
are too weak 10 perform it, The in which no
shall perform that duty not prescribed by any law bat
tie means q performing are given, i'll the the plain Ian
gGage Of the statutes aud they all Of force
the militia the army and the navy. The end, the sup
PRECISION OF the iIsurrection is required Of him; the
means and Instruments to suppress lawfully his
hands but the inanicr IN which he shall them is
no. prescribed, and could not bs prescribed, with
Ont foFekn0wledgs OF ali the future changes and
contingencies Of the asarrecton. He is therefore,
necessarily, thrown upon his discretion, to the
manner in which he viii use his means to meet the
varying exgcnces they arise. If the insurgents assal
the nation with an army, he may find 1t best
them with an army, and suppress the insuection in the
hcd ol battle II they seek to prolong tho rebellion and
gather strength by intorcouse with foreign nations he
may choose to guard the coasts and close the ports with
navy, IS one Of the most efficient means TO suppress
The nsnrrecloD And II they employ spies and emissa-
ries 10 gather Information, to forward. supplies
and To excite nsurrecolls in aid of the original
rebellion he may find IL both prudent and humane ar
rest and nprisop them And this may be done, either
FOR the purpose OF bringing them trial and condgn pun
shncnt 70: their Grimes they may be held custody
for the iidcr end OF rendering them powcrcss for mis-
! chief until tho exgency IL past.
In such state OF things the President must necess
W be the sole judge both OF the cxgency which requires
Inn 70 act and OF the manner in which it is prudent
for him to employ the powers entrusted 10 him. enable
! him TO discharge his constitutional aud legal duy-that
Is 10 suppress the instruction execute the laws And
this discretionary power OF the President is fully admitted
by the Supreme Court, in the Of Martin VS.. Mott
| az wheatons Reports; page 10; Curtis, Io)
This is great power in the hands Of the chief mags
trste and because is great and capable being per
vertec 10 evil ends M existence has been doubted de-
MED Is said TO be dangerous ia the hands of ambitious
and wicked President because he il Tor the pr
| poses of oppression and tyranny. Yes certainly il is
danaerous-a power is dangcrous-and for the ai-per
vuiing reason that all power il liable to abuse all tic
recipients Of hurlu power men, absolutely viz
tuous and wise stl IL IL power rcccsssry 10 the peace
aud safety Of thc country ana aadeliahiy belongs to the
government, and therefore must BE- exercised by
| department or officer thereof.
Why should this power be denied TO the President on
The ground Of a liability to aiGse, and dene9 The
other departments on the grogndl are they more
exempt than he from Che fates and vices Of hgHani-
| w Or they trusted by the law than he Is
trusted in their several spNerasof aeoae If it be said
that President may be ambitious and Inscriptions, IL
may BIZ sail with equal trnih that Legislature may be
factions and unprncpled, and court may be vea and
corrupt Bt these crimes ~ be presumed
against private man, and much less against any high and
highly trusted public innctionary. They ART res how
| ever, recognized ms SUCH and made punishable by the
constitution; and whoever is guilty OF them, whothor
President senator Judge is Liable TO impeachment
] and condemnation.
As to the SECOND question
HAVING assumed, in answering the arst question thu,
the President has the legal Discretionary bower arrest
and imqrison persons who guilty or ho.dmg criminal
.etcouse with men engaged il great and dangerous
surocton or persona suspected with probahie cause -
Ct such criminal completely, IL might unnecessary
60 into any prolonged argument 10 prove that IN such
writ Of habeas corpus issued by c1nrt or Judge,
yuanlrg him 20 produce the BODY Of lis prisoner and
state When hc took him and by Authority ard for what
cause he acaipe hn IN cuftotyrd then eld himself
10 Judgment ''to DO submit to, and receive whatsoever
he judge court awarding the writ shall consider IN
j, be truo, have assumed, that the President and
the Judiciary are coordinate departments of government
and the enc not subordinate tho other do not cticr
ssn how it be legally possible for JuGge issue
command to tho Prast6erpto come before him su};f-
e..ao,--tfat IT, 10 submit implicitly TO his udctest-
and OF dsobodieBcc, treat him as CRIMINAL in
Contempt Of superior saority, and punish him FOR
'1iseemeanoT, by nne-tad imp somnet II is
to say has sometimes been said that although The writ
| Of hebeas corpus <rcannot be issued ana engotced
against tho President himself yet ,hs, can be against
any OF his sabordnates for that aoagdoDs the principle
assumed OF giving relief in ai cases" Of mp:sonnloa.
by color Of artboTi. Of TIE United States, e,
take uniAnable distinction between the person Of
the President and his cisco and legal power. The law
lakes such Distinction o7 j Is 10 rcspectcr Of per-
The President, il ibc arrest ana imprisonment Of
mon, rouat almost always act By suboTdinate agents.
| and yet tie thing tone IS no hiss his tian ii
done by his own hand. But it is possible for the
President TO be IL the actual custody apriscrr aen in
civil war OF arrested on suspicion Q! being agent
ard abet,or Of rebellion and that case the writ y,ust
be uuayang unless 1t run against the President himself
Bcsiaer the whole subject matter is political and not
Judicial. Tho n3urrecton Itself is purely political It's
object is to destroy the political government of tiis
nation, and 10 establish another political government;
Hoon It's ruins. And the President, the cher civil ma
ssrae OF the nation and the active department Of
tie government rs enEnently and exclusively political In
all his principal functions. As the political chief Of the
nation the constitution charges him with preservation!
protection and defence and slTes him TO take care that
the laws be faithfully excccs<e And 10 that character