Year: 1862

right, for the same reason, to disregard each
and every provision of the Constitution, and
to exercise all power needfIl in his opiRi0I,
| to enable him "best to subdue the enemy"
| 1t has never been doubted that the power
tc abolish slavery within the States was not
delegated to the United States by the Con


stitution, but was reserved 10 the States.
II 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 power
was reserved to the States, because he is of
opinion that he may thus "best subdue the
enemy" what other power, reserved to the
States or to the people, may not be exercised
J by the President, for the Same reason, that
/ be IS OF opinion he may thus best subdue
te enemy? And if so, what distinction
can be made between powers not delegated
| to the United States at all, and powers
which, though thus delegated, are confined
| by the Constitution upon some department
Of the government than the executive2 In
deed, lhe proclamation Of September "a,
1862, followed by the orders of the War
Department, intended to carry it into prac-
teal effect, are mani lest assumptions by the
| President of powers delegated to the Con.
gress and to the judicial department Of the
Government. 1t is q clear and undoubted
prerogaliye of Congress alone, to define all
ofionses, and to aftiS to each some appropri
ate and not cruel or unusal punishment
But this proclamation and these orders
create new offenses not known to any law OF
the United States. "Discouraging enlist
men;s' and "any disloyal practice" are not
offenses known to any law Of the United
States. At the same time they may include,
among many other things, acts which are
offenses 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 forces, every person charged with
an offence is expressly required to be pro
ceeded 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 applicable to Inc oflensc proved, en-
acted before Its commission. But this proc-


amation and these orders remove the &C
cused from the jurisdiction Of the judiciary;
they substitute report made by some dep
uty provost marshal, for the presentments
of grand jury; they put military COM
mission in place of judicial court and jury
required by the Constlui ion; and they ap
ply the discretion of the commission and
the President, fixing the decree and kind
Of punishment, instead of the law of Con
gress fixing the penalty OF the offense.


1t no longer remains to be suggested that
il the ground Of action annoanced by the
President be tcnable, he may, as commander


in chief Of the army and navy, Use powers
al taI To h. Tn,t 30 hnI
Constitution exclusively delegated, to the
legislative and judicial depar ,ments OF the
government. These things have been already
done, so far as the proclamation and orders
of the President can effect them.


1t is obvious that ii no private citizen is
protected by the safe guards thrown around
him by the express provisions Of the Con-
sttuton, but each and all of those safeguards
may be disregarded, to subject him to mill
tary arrest upon tie report OF some deputy
provost marshal, and Imprisonment at the
peleasure OF the President, and trial before
a military commissioned, and punishment at
its discretion, because the President is Of
the oppinipn that such proceedings may
"bcst subdue the enemy" then all members
OF either House OF Congress and every judi
cial officer is liable to be proceeded against
as "disloyal person." by the same means
and in the same way. SO that, under this
assumption concerning the Implied powers
of the President as commander in chief in
time OF war, if the President shall be OF
rinon that the arrest Incarceration, and
trial be fore military commission OF judge
OF the United States, Tor some judicial de.
clssion, or OF one or more members OF either
House Of Congress for words spoken in de.
hate is "a measure which may best subdue
the enemy" there is then inferred on him
by the Constitution the rightlul power SO to
proceed against such judicial or legislative
officer


This power is certainly not found in any
express grant of power made by the Con
stitution to the President, nor even in any
delegation o. power made by the Constitu
ton Of the United States to any department
OF the Government. 1t is claimed to be
mander in chief OF its army and navy, charg-
ed with the duty of subduing the enemy
And to this end, as he understands 1t, lie is
charged with the duty of using, not only
those great and ample powers which the
Constitution and laws, and 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 reserv-
ed to the States, or to themselves; and is
permitted to break down those great Con
sttutonal safe guards OF the partition Of
governmental powers, and the immunity of
the citizens iIom mere executive control
which are at once both the end and means OF
free government.


The necessary result OF this iu.erpreta
ton OF the Constitution is that, in time OF
war, the President has any and all power
which he may deem it necessary 10 subdue
the enemy; and that every private and per-
sonal right of individual security against
mere executive control, and every right re.
served to the States, or 20 the people, rests
merely upon military discretion.


But the military power Of the President
is derived solely from the Constitution; and
it is at sufficiently defined there as his purely
civil power. These are in words "The
President shall be commander in chief of
the army and navy of the United States,
and of the militia of the saveral States when
called into the actual service OF the. United
States"


This is his military power. He is the
general in chief; and as such, in prosecuting
war, may be what Generals in the field are
allowed to do within the sphere Of their
actual operations, in subordination to the
laws Of their country, from which they de
rive their authority,
When the Constitution says that the PRESS
dent shall be commander in ehiet OF the
army and navy Of the United States and Of
the militia OF the several States, when call
ed INTO actual service Of the United States,
does it mean that he shall possess military
power and command over all citizens Of the
United States; that, by military edcts, he
may control all citizens, as il enlisted in the
army or navy or in the militia called into
the actual service OF the United StatesP--
Does it mean that he may make himself
legislator, and enact penal laws, governing