Daily State sentinel. [volume] (Indianapolis, Ind.) 1861-1865, 1862-11-13


afix 10 each some appropriate and not cruel
or unusual punishment. But this proclama-
ton and these orders create new otfenses, not
known 10 any law of the United States.
"Discouraging enlistments," and "aDy disloyal
practice" are no. ofenses known TO any law
OF the Uni.ed States. At the same time they
may include. among many other things, acts
which are oiienses against the laws of the
United States, and, among others, treason.
Under the Constitution and laws of the United
States, except in cases arising in the land and
naval force, every person charged with an OF
fense Is expressly required TO be proceeded
against, and tried by the Judiciary of the
United States and jury Of his peers; and he
is required by the Constitution TO Be punished,
IN conformity with some act OF Congress APP
plicable TO the ofiense proved enacted before
Its commission. But this proclamation and
these orders remove the accused from the ju-
risdiction of the Judiciary: they substitute a
report, made by some deputy provost mar
shal, for the presentment of grand jury,
they put a military commission in place of a
judicial court and jury required by the Con-
stiiution; and they apply the discretion of the
commission and the President, fixing the de-
gree and kind Of punishment, instead of the
law of Congress fixing the penalty of the
oilense.
lt no lodger remains to be suggested, that
if the ground o. action announced by the
President be tenable, he may, as commander
in-chief OF the army and navy. use powers
not delegated to the United States by the
Constitution or may use powers by the Con-
stitution exclusively delegated to the legisla-
tive and the judicial departments of the gov
ernment These things have been already
done, so far as the proclanatons and orders
OF the President can affect them.
1t is obvious. that If no private citizen is
projected in his liberty by the safeguards
thrown around him by the express provisions
of the Constitution, but each and al of those
safeguards may be disregarded, to subject him
TO military arrest upon the report of some
deputy provost marshal, and imprisonment at
the pleasure of the President, and trial before
military commission. and punishment at It's
discretion, because the President is OF the
opinion that such proceedings ''may test sub
due the enemy" then all members OF either
house of Congress and every judicial officer
is liable to be proceeded against as .'disoyal
person. by the same means and in the same
way. So that, under this assumption con-
cerning the implied powers OF the President
as commandcr-n-chief in time of war, If the
President shall bs of the opinion that the ar
rest and incarceration, and trial before mil
itary commission of a Judge of the United
States. for some judicial decision, or o. one or
more members OF either house of Congress
for words spoken in debate, is "a measure
which may best subdue the enemy" there is
then conferred on him by the Constitution
the rishtful power so TO proceed against such
judicial or legislative officer.
IS MI
express grant of power made by the Consiitu-
tion to the President, even in any delega-
ton of power made by the Constitution of The
United States to any department of the gov
ernment. II is claimed 10 b. found solely in
the fact that he is the commander-in-chief of
Its army and navy, charged with the duty OF
subduing the enemy. And to this end. as he
understands it, he is charged with the duty OF
using, not only those great and ample powers
which the Constitution and laws and the self
devotion OF the people in executing them,
have placed in his hands, but charged with
the duty OF Using powers which the people
have reserved TO the States, or to themselves;
and Is permitted 10 break down those great
constitutional safreuartls OF the partition OF
! governmental powers, and the immunity OF
| the citizen from mere executive control which
are at once both the end and the means OF
free government.
The necessary result of this Interpretation
| OF the Constitution, Is, that, in lime of war.
the President las any and all power, which
he may deem 1T necessary 20 exercise, to sub
due the enemy; and that every private and
personal right of individual security against
mere executive control, and every right re-
served 10 the States or the people, rests merely
upon executive discretion.
But the military power of the President is
derived solely from the Constitutions: and it is
as sufficiently defined there, as his purely civil
power. These are ITS words: "The President
shall be the Commandei-in-C Chief of the army
and navy of the United States, and of the
militia of the several States, when called into
the actual service of the United States"
This is his military power. He is the gen.
eral-in-chief; and as such, in prosecuting war
can do what generals in the field are allowed
to do within the sphere OF their actual opera
tons an suborlindton fotbe lars Of their country
/ from 'chich cione hey derire their aukortfys
When the Constitution says that the Presi-
dent shall be the conmandcr-in-ciief OF the
army and navy of the United States, and OF
the militia of the several States. when called
into the actual service of the United States,
does it mean that he shall possess military
4 power ana command OccT UI ct1zeHS OF
the United States; that, by military edicts, he
may control all citizens as if enlisted in the
army Or navy, Or in the militia called INTO the
actual service Of the United States? Does it
mean that be may make himself egisl ltor
and enact penal laws governing the citizens
OF the United States, and erect tribunals and
create offices to enforce his penal edicts upon
citizens! Does it mean that he NAV, bv a
prospective executive decree. repeal and an
nul the laws of the several States, which re-
spect subjects reserved by the Constitution
for the exclusive acton OF the States aud the
people? The President is the commandel-in
chief OF the army and navy. moi oaly by force
OF the Constitution, but under and subject to
the Constitution. and 10 every restriction
therein contained, and TO every law enacted
by his authority, as completely and clearly as
the private in his ranks
He is general-in-chief; but can general-in-
chief diSo6ey any IaU Of his oun countryi
When he can, he superadds TO his riqh as
commander the pocers of a usurper; and that
is military despotism. In the noise OF arms
have we become deaf 10 the warning voices
of our fathers, to take care that the military
shall ALWAYS be subservient to the civil powers:
Instead OF listening to these voices, some per-