Year: 1862

der in. chief of the army and navy, in time
of war, to disregard any positive prohibi
, ton of the Constitution, or to the T. S. by
the Constitution, because, in his judgc,ne mt


he may thereby "best subdue the enemy"
he has the same right for the same reason,
to diregard each and every provision Of the
Constitution, and to exercise all power
neenlful, IN his opinion, to enable him
'bcst to subdue the enemy"


1t has never been doubted that the pow
er to abolish slavery within the States was
not delegated to the United States by the
constitution, but was reserved to the States
If the President, as commander- in chief of
the army and navy in time OF war, may,
by an executive decree. exercise this power
to abolish slavery in the States, which pow.
er was reserved to the States, because he is
Of opinion that he may thus "bcst subduc
the enemy" what other power, reserved to
the States or to the people, may not be ex.
ercised by the President, for the same reas-
Oh, that he is Of opinion he may thus best
subdue the enemy And if so, what dis
tinction can he made between powers not
delegated to the United States at all, and
powers, which, though thus delegated, are
conferred by TIE constitution upon some
department Of the government other than
the executive? Indeed, the proclamation
Of September "a, 1862, followed By the or.
ders 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. 1t is clear
and undoubted prerogativc Of Congress
alcnc, to define all offences, and to atiix to
each some appropriate and not cruel or un-
usual punishment. But this proclamation
and these orders create new offences, not
known to any law of the United States
"Discouraging cnlistments," and "any dis
loyal practice" are not offences known to
any law OF the United States At the same
time, they may include, among many other
things, acts which are offences against the
laws Of the United States, and among
others, treason. Under the Constitution
and laws Of tho United States, except in
cases arising in the land and naval forces,
every person charged with an offence is
expressly required 70 BE- proceeded against,
and tried by the judiciary Of the L. S. and
ajury of his peers and he is required by
the Constitution to be punished, in con:or-
nifty with some act OF Congress applca-
bIe to the oifcnse proved, enacted before
its commission. But the proclamation and
these orders remove the accused from the
jurisdiction Of the judiciary-they substi-
tutc report, made by some deputy pro-
vost marshal, for the presentlnsnt Of a
grand jury, they put military commits
sion in place Of judicial court and jury
required by the Constitution and they
apply the discretion Of the commission
and the President, fixing the decree and
kind of punishment, instead Of the law, Of
Congress fixing the penalty of the offence


1t no longer remains to be suggested,
that if the ground of action announced by
the President be reasonable, he may, as
commander in chief Of the army and navy,
use powers not delegated to the U. S. by
the Constitution or may use powers by
the Constitution exclusively delegated to
the Legislative and the judicial departments
Of the government. These things have
been already done, so far as the proclama-
tions and orders Of the President can effect
them.


1t is obvious. that ii no private citizen is
protected in his liberty by the safeguards
thrown around him by the express porvis-
ions Of the Constitution, but each and all
of those safeguards may be disregarded, to
subject him to military arrest upon the re-
port Of some deputy provost marshal, and
Imprisonment at the pleasure of the Presi.
| dent, and trial before military commission,
| and punishment ut its discretion, because
the President is Of opinion that such pro-
ccedings may best subdue the enemy
then all members Of either house Of Con-
gress and every judicial officer is liable to
oe proceeded against as 'lisloyal person.
by the same means and in the same way
So then, under this assumption concerning
the implied powers Of the President as
| commander-in- chief in time Of war, il the
President shall be Of opinion that the ar
rest and incarceration, and trial before a
military commission Of judge Of the [.
S., for some judicial decision, or of one or
more members Of either house of Congress
for words spoken in debate, 'is meas,
ure which may best suboue the enemy"
there is then conferred on him by the CON
stituton the rightful power so to proceed
against such judicial or legislative officer


This power is certainly not found in any
express grant Of power made to the Con
| stituton to the President, nor even in any
delegation of power made by the Consti-
tuition of the U. S. to any department Of
the Government 1t is claimed to be 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 a"d laws and the self-dcvotion
Of the people in executing them, have plac
ed in his hands, but charged with the duty
OF using powers which the people have re.
served to the States, or to themselves and
is permitted to break down those great
constitutional safeguards Of the partition
of governmental powers, and the immunity
Of the citizens from merc executive con.
troll, which are at once both the end and
the means of free government.


The necessary rt suit of this interprcta
ton Of the Constitution is, that, in time of
war, the President has any and all power,
which he may deem it necessary to cxcr-
else, to subdue the enemy and that every
private and personal right Of individual sc.
curity against mere executive control, and
every right reserved to the States Of the
people, rests merely upon executive d.scre-
ton.


But the military power Of the President
is derived solely from the Constitution; and
it is sufficiently defined there as his purely
- power. These arc its words: 1.-The
i1eSident shall be the Commander in Chief
Of the army and navy Of the U. S., and OF
the militia Of the several states when called
into the actual service Of the U. S."


This is his military power. lie is tn,
generalu chief; and as such, in prosecut
ing the war, may do what generals IN the
field are allowed to do within the sphere of
their actual operations, in suborainatio1 TO
the lams Of their country, from ehich
a!ons they dsrire their authority"


When the Constitution says that the Pres.
dent shall be the commander in.chief Of the
army and navy Of the u. S and of the