Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1862-10-31

ferred by the Constitution on Congress or on
the President. The only judicial decisions
which have been made upon this question have
been adverse to the power OF the President.
Still, very able lawyers have endeavofed to
neutrality-suspicious. to the satisfaction Of others
have maintained, that the power to deprive
o particular person Of "the privilege OF the
writ" 10 an executive power. For while u has
ally admitted, that Congress alene can suspend
law or render it imperative, and consequently
that Congress alone oan prohibit the courts
from issuing the writ, yet that the executive
might, In particular cases, suspend or deny the
privilege which the writ was designed to se'
cure. ] am not aware that any one has at
tempted TO show that under this grant OF power
to suspend "the privilege OF the writ Of babesa
corpus, the President may annnl the laws oi
States, create new offensea unknown to the laws
Of the United States, erect military commits
sions 10 try and punish them, aud then, by o
sweeping decree, suspend the writ of haboaa
corpus as to all persons who shall be "arrested
by any military authority" think he would
make more bold than wise experiment on the
credulity Of the people, who should attempt to
convince them that this power is found in the
habeas corpus clause of tho Constitution. No
| i
will be made. And therefore repeat, that no
other source of tbis power has epeT been su9-
gested, save that described by the President
himself, as belonging to him as the Command
er-in-Chief.
II must be obvious to the meanest capacity
that, II the President Of the United States has
an implied constitutional right, as Commander.
in-Chief Of tho Army and Navy, in time of war,
to disregard any one positive prohibition of the
Constitution, or to exercise any one power not
delegated to the United States by the Consttu.
tion, because, 10 bis judgment, he may thereby
"best subdue the enemy" he has the same
right, for tue same reason, to disregard each
and every provision Of the Constitution, and to
exercise all power netdul, in his opinion, to en-.
able him "bsst to subdue the enemy"
| Il hes never been doubted that the power to
abolish slavery within the States was not dele
gated 10 the United States by the Constitution,
but was reserved to the States. If the Presi-
navy In time Of war, may, by on executive de.
cree, exercise this power to abolish slavery In
the States, which power was reserved to the
States, because he Is Of opinion that he may
thus "best subdue tho enemy" what other
power, reserved to the States or the people,
may not be exercised by the President, for the
same reason, that he is Of opinion he may thus
best subdue the enemy2 Aud If 80, what dis
tncton can be made between powers not dele
gated to the United States at all, and powers
which, though thus delegated, are conferred by
the Constitution upon some department. of the
Government other than the Exeeutive2 Indeed,
the proclamation Of September "a, 1862, fol-
lowed by the order of the War Department,
intended to carry it into practical effect, are
manifest assumptions by the President of powers
delegated to the Congress and to the judicial
department of the Government It Ia q clear
and undoubted prerogativo of Congress alone,
to define all offenses, and to affix to each some
appropriate and not cruel or unusual punish
ment. But this proclamation and these orders
create new offenses not known to any law of
the United States "Dscouraging enlistments"
and "any disloyal practice" are not offenses
known to any law Of the United States. Al
the samo time they may include, among many
other things, acts which are ofenses against
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 forces, every person charged
with an Offense iB expressly required to be pro.
cseded against and tried by the judiciary Of the
United States and jury of his peers; and he
is required by the Constitution " be punished,
In conformity with some act Of Congress appli.
cable 10 the 0ffense proved, enacted before it's
commission. But this proclamation and these
orders remove the accused from the jurisdiction
of the judiciary; they substitute report made
BY some deputy Provost Mashal, for the present.
ment Of grand jury; they put military COM
mission In place Of judicial court and jury re.
quired by the Constitution; aud they apply the
discretion Of the commission and the President,
fixing the degree and kind OF punishment, In.
stead of the law Of Congress fixing the penalty
of the ofHense.
1t no longer remains 10 be suggested, that II
the ground Of action announced by the Pfes-
dent be tenable he mag, 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 Constitution exclusively del
egated to the legislative and judicial depart.
ments Of the Government. These things have
been already done, 80 far 90 the proclamations
aud orders Of the President can effect them
u is obvious that If no private citizen is pro-
tected in his liberty by the safeguards thrown
around him by the express provisions of the
Constitution, but each and all Of those safe
guards 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 q
military commission, and punishment OF its
discretion, because the Psesident 10 of opinion
that suoh proceedings may "best subdue the
enemy" then all members Of either house of
Congress and every judicial officer Is liable to
be proceeded sgainss as o 6isloyal person."
by the same means and la the same way. So
that, under this assumption concerning the i'm.
piled powers Of the Pfeeident as Commander.
10. Chiet 10 time of war, If the President shall
be OF opinion that the arrest aud incarceration,
and trial before g military commission of q
Judge Of the United States, for some Judicial
decision, or one or more members Of either
house Of Congress for words spoken in debate,
Is ga measure which may best subdue the enc.
my," there ig then conferred on him by the
Consti .utIon the rightful power so to proceed
against such Judicial or legislative officer.
This power is certainly not found in any ex.
press grant or power made by the Constitution |
to the President, nor even in any delegation Of
power made by the Constitution Of the United |
States to any department Of the Government. |
II 10 claimed to be found solely In the fsc |
that he ia the Commander. in Chief OF its army
aud navy, charged with the duty of subdulng |
the enemy. And to this end, as he understands |
IL, ,he is charged with the duty Of using, not only
those great and ample powers which the C:n- |
stitution and laws, and the self-devotion Of
the people in executing them, have placed In |
bis hands, but charged with the duty of using
powers which the people have reserved to the |
States, or to themselves, and Ia permitted to |
break down those great constitutional safe |
guards Of the partition Of governmental powers, |
and the immunity of the citizen from mere ex-
ecutive 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 time Of war, the
President has any and oil power which he NAV