The weekly pioneer and Democrat. [volume] (Saint Paul, Minn. Territory) 1855-1865, 1862-11-07

war, includes the power to use the custom
airy and necessary means effectually to
carry it on. AS Congress may institute a
state of war, it may legislate into existence
and place under executive control the means
for its prosecution. And, in time Of war,
without any special legislation, not the
commander-in-chief only, but every COM
mander of an expedition, or Of military
post, is lawfully empowered by the Consti-
tuition and laws of the United States to do
whatever is necessary, and is sanctioned by
the laws of war, to accomplish the lawful
objects of his command. But it is obvious
that this implied authority must find early
limits somewhere If it were admitted
that a commanding general in the field
might do whatever in his discretion might
be necessary to subdue the enemy, he could
levy contributions to pay his soldiers; he
could force conscripts into his service; he
could drive out of the entire country all
persons not DESTROYS to aid HMM short,
he would be the absolute master of the
country for the time being.
No one has ever suppOsed-nO one will
now undertake to maintain-that the COM
mander-in chiof, in time of war, has any
SlCll law lul DIS ILLS.
What then, is his authority over the
persons and property of citizens | an
swer, that, over all persons enlisted in his
forces he has military power and COM
mand that over all persons and property
Uitln the sphere Of his actual operations
IN tie field, he may lawfully exercise such
restraint and control as the successful pros
ecution of his particular military enter
prise may, in his honest judgment, abso-
lutely require and upon such persons as
have committed offences against any arti-
Gle of war, he may, through appropriate
military tribunals, infict the punishment
prescribed by law 4,d there Ills lastuI
authority ends.
The military power over citizens and
their property is power to act, not pow
er to prescribe rules for future action. 1t
springs from present pressing emergencies,
and is limited by them. 1t cannot assume
the function of the statesman or legislator,
and make provision for future or distant
arrangements by which persons or proper
ty may be made subservient to military
uses. 1t is the physical force of an army
in the field, and may control whatever is
so near as to be actually reached by that
force, in order to remove Instructions to
its exercise.
But when the military commander con-
trolls the persons or property of citizens,
who are beyond the sphere of his actual
operations in the field, when he makes laws
to govern their conduct, he becomes a le-
gislatOr. Those laws may be made actual
ly operative obedience to them may be
enforced by military power; their purpose
and effect may be solely to recruit or sup
port his armies, or to weaken the power
of the enemy with whom he is contending.
BIT he is a legislator STILL. and whether
his edicts are clothed in the form of proc
lamations, or of military orders, by what
ever name they may be called, they are
laws. If he have the legislative power,
conferred on him by the people, it is well.
If not, he usurps it.
He has no more authority to hold all the
citizens of the entire country, outside of
the sphere of his actual operations in the
field, amenable to his military edicts, than
he has to hold all the property of the coun-
try subject to his military acquisitions. He
Is not the military commander of the citi-
gems of the United States, but of its SOL
diers.
Apply these principles to the proclama-
tons and orders Of the President. They
are not designed to meet an existing emer-
gency in some particular military opera
ton in the field; they prescribe future
rules of action touching the persons and
property of citizens. They are to take eff
feet, not merely within the scope of militia
ry operations in the field, or in their neigh
borhood, but throughout the entire coun-
try, or great portions thereof. Their sub
.ject-matter is not military offences, or mil
itary relations, but civil offences and do
mestic relations the relation of master
and servant; the offences of disloyalty or
reasonable practices. Their purpose is
not to meet some existing and instant mil
itary emergency, but to provide for distant
events, which may or may not occur; and
whose connections, if they should coincide
are indirect, remote, casual, and possible
merely.
1t is manifest that in proclailning these
edicts, the President is not acting under
the authority of military law first, be-
cause military law extends only over the
persons actually enlisted in the military
service; and second, because these persons
are governed by laws enacted by the leg
islative power. 1t is equally manifest that
he is not acting under that implied author
ity which grows out of particular actual
military operations; for these executive
DEGREES do not spring from the special
emergencies of any particular military OPP
erations and are not limited to any field in
which any such operations are carried on.
Whence, then, do these edicts spring !?
They spring from the assumed power to
extend martial law over the whole terrific
ry of the United States; power, for the
exercise of which by the President, there
is no warrant whatever in the Constitu-
ton; power which no free people could
confer upon an executive officer, and re-
main free people. For it would make
him the absolute master of their lives,
their liberties, and their property, with
power to delegate his mastership to such
satraps as he might select, or as might be
imposed on his credulity, or his fears.
Amidst the great dangers which encompass