stitutional means, should be subjected to the possibility o military arrest and imprisonment, and trial before a military commission, and punishment at its discretion for offence unknown to the law; a possibility to be converted into fact at the mere will of the President, or of some subordi nate officer, clothed by him with this power. But I do per

ceive that this executive power is asserted.

I am quite aware, that in times of great public danger unexpected perils, which the legislative power have failed to provide against, may imperatively demand instant and vigorous executive action, passing beyond the limits of the laws; and that, when the Executive has assumed the high responsibility of such a necessary exercise of mere power he may justly look for indemnity to that department of the government which alone has the rightful authority to grant it;- an indemnity which should be always sought and ac corded upon the clearest admission of legal wrong, finding its excuse in the exceptional case which made that wrong absolutely necessary for the public safety.

But I find no resemblance between such exceptional cases and the substance of these proclamations and these orders. They do not relate to exceptional cases—they estab lish a system. They do not relate to some instant emergency-they cover an indefinite future. They do not seek for excuses-they assert powers and rights. They are general rules of action, applicable to the entire country, and to every person in it; or to great tracts of country and to the social condition of their people; and they are to be applied whenever and wherever and to whomsoever the President, or any subordinate officer whom he may employ, may choose to apply them.

Certainly these things are worthy of the most deliberate and searching examination.

Let us, then, analyze these proclamations and orders of the President; let us comprehend the nature and extent of

the powers they assume. Above all, let us examine that portentous cloud of the military power of the President, which is supposed to have overcome us and the civil liberties of the country, pursuant to the will of the people, ordained in the Constitution because we are in a state of war. And first, let us understand the nature and operation of the proclamation of emancipation, as it is termed; then, let us see the character and scope of the other proclamation, and the orders of the Secretary at War, designed to give it practical effect, and having done so, let us examine the asserted source of these powers.

The proclamation of emancipation, if taken to mean what in terms it asserts, is an executive decree, that on the first day of January next, all persons held as slaves, within such States or parts of States as shall then be designated, shall cease to be lawfully held to service, and may by their own efforts, and with the aid of the military power of the United States, vindicate their lawful right to their personal freedom.

The persons who are the subjects of this proclamation are held to service by the laws of the respective States in which they reside, enacted by State authority, as clear and unquestionable, under our system of government, as any law passed by any State on any subject.

This proclamation, then, by an executive decree, proposes to repeal and annul valid State laws which regulate the domestic relations of their people. Such is the mode of operation of the decree.

The next observable characteristic is, that this executive decree holds out this proposed repeal of State laws as a threatened penalty for the continuance of a governing majority of the people of each State, or part of a State, in rebellion against the United States. So that the President hereby assumes to himself the power to denounce it as a punishment against the entire people of a State, that the valid

laws of that State which regulate the domestic condition of its inhabitants, shall become null and void, at a certain future date, by reason of the criminal conduct of a governing majority of its people.

This penalty, however, it should be observed, is not to be inflicted on those persons who have been guilty of treason. The freedom of their slaves was already provided for by the act of Congress, recited in a subsequent part of the proclamation. It is not, therefore, as a punishment of guilty persons, that the commander-in-chief decrees the freedom of slaves. It is upon the slaves of loyal persons, or of those who, from their tender years, or other disability, cannot be either disloyal or otherwise, that the proclamation is to operate, if at all; and it is to operate to set them free, in spite of the valid laws of their States, because a majority of the legal voters do not send representatives to Congress.

Now it is easy to understand how persons held to service under the laws of these States, and how the army and navy under the orders of the President, may overturn these valid laws of the States, just as it is easy to imagine that any law may be violated by physical force. But I do not understand it to be the purpose of the President to incite a part of the inhabitants of the United States to rise in insurrection against valid laws; but that by virtue of some power which he possesses, he proposes to annul those laws, so that they are no longer to have any operation.

The second proclamation, and the orders of the Secretary of War, which follow it, place every citizen of the United States under the direct military command and control of the President. They declare and define new offences, not known to any law of the United States. They subject all citizens to be imprisoned upon a military order, at the pleasure of the President, when, where, and so long as he, or whoever is acting for him, may choose. They hold the citizen to trial before a military commission

appointed by the President, or his representative, for such acts or omissions as the President may think proper to decree to be offences; and they subject him to such punishment as such military commission may be pleased to inflict. They create new offices, in such number, and whose occupants are to receive such compensation, as the President may direct; and the holders of these offices, scattered through the States, but with one chief inquisitor at Washington, are to inspect and report upon the loyalty of the citizens, with a view to the above described proceedings against them, when deemed suitable by the central authority.

Such is a plain and accurate statement of the nature and extent of the powers asserted in these executive proclamations.

What is the source of these vast powers? Have they any limit? Are they derived from, or are they utterly inconsistent with, the Constitution of the United States? The only supposed source or measure of these vast powers appears to have been designated by the President, in his reply to the address of the Chicago clergymen, in the following words: "Understand, I raise no objection against it on legal or constitutional grounds; for, as commander-inchief of the army and navy, in time of war, 1 suppose I have a right to take any measure which may best subdue the enemy." This is a clear and frank declaration of the opinion of the President respecting the origin and extent of the power he supposes himself to possess; and, so far as I know, no source of these powers other than the authority of commander-in-chief in time of war, has ever been suggested.

There has been much discussion concerning the question whether the power to suspend the "privilege of the writ of habeas corpus," is conferred by the Constitution on Congress, or on the President. The only judicial decisions

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which have been made upon this question have been adverse to the power of the President. Still, very able lawyers have endeavored to maintain, — perhaps to the satisfaction of others, have maintained, that the power to deprive a particular person of "the privilege of the writ," is an executive power. For while it has been generally, and, so far as I know, universally admitted, that Congress alone can suspend a law, or render it inoperative, and consequently that Congress alone can 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 secure. I am not aware that any one has attempted to show, that under this grant of power to suspend "the privilege of the writ of habeas corpus," the President may annul the laws of States, create new offences, unknown to the laws of the United States, erect military commissions to try and punish them, and then, by a sweeping decree, suspend the writ of habeas corpus as to all persons who shall be "arrested by any military authority." I think he would make a 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 the Constitution. No such attempt has been, and I think none such will be made. And therefore I repeat, that no other source of this power has ever been suggested, save that described by the President himself, as belonging to him as the commander-in-chief.

It must be obvious to the meanest capacity, that if the President of the United States has an implied constitutional right, as commander-in-chief of the 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 Constitution, because, in his judgment, he may thereby "best subdue the enemy," he has the same right, for the same reason, to disregard each