Year: 1862

the States and the people? The Presiden
is the commander in chief of the army aBt
navy, not only by force OF the Constitution
but under and subject TO the Constitution
and to every restriction therein contained
and its every law enacted by its authority


lie is general in chief; but can a general
iD-chiei djSoLey any lltD Of his oi0a co,ntry?-
When he can, he superadds to his yigI's a
commander, the polCers of an usuTpeT; anC
that is military despctism. In the nois,
Of arms We have become deaf to the warning
voices Of our fathers, 10 take care that tn
military shall always be subservient to th
civ powers? Instead Of listening to ..thes,
voices, some persons now seem to think tha
this is enough to silence objection, to say
true enough, there is no civil right to do thi
or that, but it is a military act. They seen
TO have forgotten that every military act i
10 be tested by the Constitution and laws o
the country under whose authority ii i
done. And that under the Constitution ant
laws Of the United States, no more thai
under the government of Great Britain, o.
under any free or any settled government
the mere authority to command an army I
not an authority to disobey the laws OF tn,
country.


The trainers Of the Constitution thought
it wise that The powers OF the commander. il
chief OF the military forces of the United
States should be placed in the hands OF the
chief civil magistrate. But the powers o
the commander.in chief are in no degree
enhanced or varied by being conferred upon
tie same officer, who has important civil
functions. If the Constitution had provided
that q commander in~chief should be ap.
pointed by Congress, his powers would have
been the same as the military powers OF the
President now are. And what would be
thought by the American people OF an at
tempt by general in chief to legislate by
his decrees for the people and for the
States.


Besides, all the powers OF the President
are executive merely. lie cannot make a
law He cannot repeal one. He can only
execute the laws. lie can neither make, nor
suspend nor alter them. He cannot even
make an article Of war. He may govern the
army either by general or special orders, but
only in subOrdination to the Constitution and
laws Of the United States, and the articles oil
war enacted by the legislative power.


The time has come when the people of the
United States must understand and must
apply those great rules OF civ il liberty which
have been arrived at by the ltdevoted ef-
forts OF thought and action of their anoes,
tors, during seven hundred years OF struggle
against arbitrary power. If they fail 10 un-
derstand and apply thetn, if they iail to hold
every branch OF their government steadily to
them, who can imagine what is to come out
OF this desperate struggle? The military
power OF eleven of these States being de-
stroyed; what then? What is to be their
conditions What is to be our condition?


Are the great principles of free govern
ment to be used and consumed as means oil
war? Are we not wise enough and strong
enough to carry on this war to successful
military end without submitting to the loss
OF any one great principle of liberty? We
are strong enough. We are aci8e enough, il
the people and their servants will but under
stand and observe the just limits Of military
power. .... ...-


What then, are those limits? They are
these. There is military law; there is mar,
tial law. Military law is that system OF
laws enacted by the legislative power for the
government OF the army and navy OF the Uni
ted Sta es, and oil the militia whee called into
the actual service of the United States. 1t
has no control whatever over any person or
property Of any citizen. 1t could not even
apply to the teamsters Of an army, save by
lorce ol express provisions Of the laws o
Congress, making such persons ainenable
thereto. The persons and the property oI
private citizens Of the United States are as
absolutely exempted from the control of mil
itary law as they are exempted from the
control Of the laws of Great Britain.


But there is also martial laW. What is il ?
1t is the will Of a military commander, opera
ting, without any restraint save his Judgment
upon the lives, upon the property, upon the
entire social and individual condition oil all
over whom this law extends. But, under
the Constitution Of the United States, over'
,ohom does such lae0 extend?


Win any one be bold enough to say, in
view OF the history ofour ancestors and our
selves, that the President of the United
States can extend such law as that over the
entire country, or over any defined geograph-
ical part thereof, save in connection with
some particular military operations which he
is carrying on there? Since Charles |. lost
his head, there has been no king in England
who could make such law in that realm -
And where is there to be found, in our his.
tory or our constitutions, either state pr ma
tionaL any warrant for saying that Presi .
dent of the United States has been empow-
cred by the Constitution to extend mar ial
law over the whole country, and to subject
thereby. to his military power every right Of
every citizen? He has no such authority.


In time OF war, o military commander,
whether he be the Commander in Chief or
one of his subordinates, must possess and
exercise powers, both over the persons and
property of the citizens, which do not exist
in time OF peace. But he possesses and ex.
ercises such powers not an spite Of tie Consti-
tuition and laws Of the United States or in
derogahm from their authority, but in virtue
the'sof and an strict Sabordination thereto
The general who moves his army over pri.
vate property in the course OF his operations
in tie field, or who inpresses into the public
service means of transportation or subsist-
ence, TO enable hun to act against the enemy
or seizes persons within his lines as spies,



or destroys supplies IN immediate danger oI
falling into the hands of the enemy, uses au
thority unknown to the Constitution and
laws Of the United States in time of peace
but not unknown to that Constitution and
those laws in time Of war. The power tc
declare war includes the power to use the
customary and necessary means effectualy tc
carry it on. AS Congress may institute Q
state Of war, it may legislate into existence
and place under executive control the means
for It's prosecution. And, in time Of war
without any special legislation, not the Com
mander in Chief only but every commander
OF an expedition or Of military post, is
lawfully empowered by the Constitution and
laws OF the United States to do whatever is
necessary, and ls sanctioned by the laws o
war, to accomplish the lawful objects Of bis
command, But it is obvious that this inn
piled authority must fnd early limits some-
where. II it were admitted that com
mandIng general in the field might do
whatever In his discretion might be pecessa.