Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 2.
Frank Moore, Ed.

[192] clothed with the power to issue the writ, should issue it, and being obeyed, should decide (and such instances would no doubt occur) that the enterprise was not only not treasonable but loyal, constitutional, and praiseworthy. Discharged, they return to their troops, and are again leading them in their treacherous career. Is this the way in which the rebellion is to be suppressed? Is this the end of the power and of the means vested in the President to suppress it? If it is, then, in the words of the Chief-Justice, in the case quoted, “the military array of the Government would be mere parade, and rather encourage attack than repel it.” The consequences certain almost to follow from such a doctrine are thought to be so striking and so fatal to a faithful execution of the laws, as to suffice without more to demonstrate its unsoundness.

Again, the power to disregard the writ, which the President believes he has, is not the same power given to Congress by the ninth section of the first article of the Constitution. That looks to a general suspension for a limited time. During that time, as far as the Government of the United States is concerned, the writ is totally inoperative. No one, no how imprisoned by the authority of the Government, can have the writ. Its total suspension within the period determined by Congress, not only covers the cases of persons arrested upon treasonable charges or suspicions, but all other cases, irrespective of the causes of arrest. This is not the power vested in the President. His authority is measured and limited by the existing exigency of each arrest. In each instance, if the grounds of the arrest involved in any way the success of his array of force, he has a right to hold the party till all danger to that object is at an end. This being a military question, it must be for him, as the commander-in-chief, or his agents, to decide it. He does not assume the power to suspend the writ in the sense in which that power is in Congress. Congress can repeal it altogether for a time. Without repealing it he disregards it for the military end he is bound to accomplish — the the suppression of the rebellion by force — and only in such instances as are thought by him to be material to that end. The two powers are by no means identical. The one is legislative, the other is executive. The one is a civil, the other is a war power. The one a civil, the other a military question. If the war power of every Government may declare martial law — and this no one has yet denied — then it must have the power, as one of the admitted incidents of martial law, to disregard the writ in question.

But it is alleged that a control over the writ is exclusively with Congress, because the Constitution gives it to that department, and because it is, in its nature, a legislative power. For the reasons already assigned neither of these grounds is believed to be correct. On the contrary, the war power — that is, the conduct of the war — as has been shown, would be comparatively impotent if it was subjected in all cases to the writ in question.

It seems, too, to be supposed — and such is the view now taken by the Chief-Justice--that no powers are vested in the Executive except such as are expressly delegated by the second article of the Constitution. And, reasoning on this hypothesis, it is contended that the power which the President has exercised is not in him, because not so given by that article. It is submitted that this is an incorrect interpretation of the Constitution. As far as the legislative and judicial departments are concerned the rule is right — as to the first, because in words it is vested only with the specially granted powers; and as to the second, because its particular jurisdiction is prescribed. But this is not true of the Executive department.

The article and. section organizing that department begins with saying, “the executive power shall be vested in the President;” and then proceeds to prescribe the mode of his election; and although pointing out certain particular powers, contains no words limiting him to such powers alone. Nor could this have been matter done without giving to the article the prolixity of a code. The true rule of construction is therefore thought to be that all powers of an executive nature, not denied to the President or given with limitations, and not inconsistent with the general character of the Government, are in the President by force of the terms, “the executive power shall be vested in a President.” This rule was long since laid down by Alexander Hamilton, one of the chief founders of the Constitution, and one of the ablest of its defenders whilst it was under the consideration of the people. The proclamation of neutrality issued by General Washington in April, 1793, was bitterly assailed at the time as being beyond his constitutional authority. Hamilton, in a series of letters under the signature of “Pacificus,” defended it, and in the first of the series laid down the rule here stated. He maintained that the power there exercised was in its nature executive, and therefore in the President, and referred to the different terms in which the powers are granted to Congress and the President respectively, by the first and second articles, in order to show that although the particular power was not given to the President by specific terms, it was given by force of the general grant of the executive power. His reasoning, which would seem to be conclusive, was this:

The difficulty of a complete enumeration of all the cases of Executive authority would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for these terms when antecedently used. The different mode of expression employed in the Constitution in regard to the two powers, the legislative and the executive, serves to confirm this inference. In the article which gives