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adopted that the exercise of power by one, in relation to a particular subject-matter, ousted and took away the power of the other over the same subject-matter. It would be difficult to maintain that while Congress legislated against the rebels as traitors, and provided for their punishment as such, the President might recognize them as belligerents in such a manner as to abrogate the provisions of the Constitution, and the preceding legislation of Congress. But the author finds no difficulty in maintaining the omnipotence of the President, in regard to the emancipation of slaves, at the same time that he maintains the right of Congress to judge and determine whether such a necessity has occurred as requires and authorizes such emancipation.
The chapter on the war powers of the President, opens with a somewhat bolder tone, with more of bare assertion, and less of an attempt to cover his positions by the sophistry of an argument. The power asserted for the President is, in terms, more especially one for the emancipation of the slaves. It is alleged that, —
“the power of the President, as Commander-in-chief of the army and navy of the United States, when in actual service, to emancipate the slaves of any belligerent section of the country, if such a measure becomes necessary to save the country from destruction, is not, it is presumed, denied by any respectable authority.” “The Constitution confers on the Executive, when in actual war, full belligerent powers; the emancipation of enemies' slaves is a belligerent right. It belongs exclusively to the President as Commander-in-chief, to judge whether he shall exercise his belligerent right to emancipate slaves in those parts of the country which are in rebellion. If exercised in fact, and while the war lasts, his act of emancipation is conclusive and binding forever on all the departments of government, and on all persons whatsoever.”
You are aware of the course of argument which is resorted to whenever an attempt is made to controvert this assumed power. The attempt is treated as if the denial of the right was equivalent to a claim of some rights and privileges for slavery, which do not attach to other species of property; and thereupon the objector is subjected to a certain course of denunciation and vituperation. But in fact the argument against the right to emancipate is not founded on any peculiarities arising from the relation of master and slave, which distinguish that species of property in regard to the power of Congress or the President, from other descriptions of property, or that relation from other domestic relations, under the laws of the State. This is doubtless more extensively known than acknowledged. Let it be understood, then, if it may be, that the war power asserted on the part of the President, in this respect, is a power which may equally well be exercised over any other description of property, real or personal.
The President derives his office, and his powers in the execution of that office, from the Constitution. Some of those powers are derived from express grant, and others may exist by implication, or as incident to powers expressly granted. It is or ought to be well settled, that where a power is granted without any restriction or limitation upon it, whatever is necessary to the exercise of the power is granted with it. It is to be noted, however, that this last principle extends only to what is necessary and appropriate to the case. “The Government of the United States can claim no powers, which are not granted to it by the Constitution; and the powers actually granted must be such, as are expressly given, or given by necessary implication.” “In the interpretation of a power, all the ordinary and appropriate means to execute it are to be deemed a part of the power itself.”
The provisions of the Constitution which have been cited, as sustaining the unlimited powers claimed for the President, are, that the Executive power is vested in the President, — that he is required to take an oath that he will faithfully execute the office of President of the United States, and will to the best of his ability preserve, protect, and defend the Constitution, — that he is Commander-in-chief of the army and navy, and of the militia of the several States when called into the actual service of the United States, – that he shall take care that the laws be faithfully executed, - and that the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, public safety may require it.
These provisions are referred to by the author of the pamphlet.
It need not be argued that the “Executive power of the President” is not an unlimited, or, of itself, even a very extensive war power. The oath is an official oath. The official oath of other officers is to support the Constitution. His is to preserve, protect, and defend it. . The reason of the difference probably is, that as Chief Executive Magistrate, and as Commander-in-chief, the power through which the Constitution is to be preserved, protected, and defended, in accordance with, and in pursuance of, the laws of the United States, is placed in his hands. The oath does not enlarge his powers. As Commander-in-chief he is to do what a Commanderin-chief under a government of laws ordinarily does according to law, being subject always to any constitutional or legal restrictions imposed upon a Commander-in-chief under the Constitution. What a Commander-in-chief in England, —in the country from which we derive the great principles which lie at the base of our free institutions,—is accustomed to do in the execution of his office, the President as Commander-in-chief may do, unless there is some constitutional or legal restraint, modifying his power. The provision that he shall take care that the laws be faithfully executed imposes a duty, rather than confers a power. The duty carries with it, as an incident, the power to use the means necessary for the purpose, so far as the Constitution and laws have provided those means, – no farther. The duty is not to make any laws, but to enforce those which are made by the legislative department. It is apparent from this examination, that neither by virtue of his power as President, — nor of his oath to defend the Constitution, — nor of his office as Commander-in-chief, nor of his duty to take care that the laws be faithfully executed,—has the President any powers which conflict with other provisions of the Constitution, or, which can be lawfully exercised in the subversion of those provisions, or in the destruction or change of the rights and institutions of any State. The arguments for this presidential power, are founded, substantially, upon an allegation of “military necessity,” and an assumption that the President is the sole judge when a military necessity exists, and what is required by it; –always provided, it should be added, that he judges according to the wishes and purposes of those who assert the existence of the power, and urge him to use it.
I have thus endeavored to expose sqme of the fallacies of this elaborate argument in favor of a despotic emancipation. It is a tissue of miserable sophistry, bad law, and, if possible, worse logic.
On the basis of this argument, anything may be made a military necessity. One alleged necessity is as good as another, — the President being the sole judge. And the formula of denominating any measure proposed to be adopted, “a military necessity,” being a mere matter of form, may soon be dispensed with, and the doctrine boldly promulgated that all the measures to which the persons in power see fit to resort must receive an unconditional support, with no doubt expressed of their constitutionality, on pain, at least, that any recusant shall be denounced as “disloyal.”
I do not propose to present other arguments to show that there is, and can be, no such right as is claimed; having endeavored to do that, somewhat at large, upon another occasion."
*Letters to Rev. Leonard Bacon, D.D.—Having recently, in those letters, discussed the power of the President to emancipate the slaves, I should not have taken the trouble to expose the fallacies of this pamphlet, (although it places the right upon very different grounds from those assumed by the Reverend Doctor.) were it not for the sanction given to it by the War Office, in employing its author as the legal adviser of that department; and the persistent attempts which have been made to commend it to public notice, and to disseminate its doctrines, by a multiplication of editions, and by the weekly commendation of its author's great knowledge of constitutional law, and of his exceeding patriotism in accepting political office;— of which the following, from a Boston newspaper, may serve as specimens. It might save some labor, if the first and second were stereotyped, and inserted “once a week till forbid.”
“William Whiting, Esq., who has been appointed Solicitor of the War Department, is the well-known patent lawyer of this city, and a man of fine legal attainments, and well versed in constitutional law. Unlike some so-called constitutional lawyers, he believes that the Government has power to preserve itself, and has rights superior to those of armed rebels. A
It is sufficient, at this time, to say, that no such power, by the mere force of a proclamation of general emancipation, can be derived from any belligerent right, or any right of conquest, or from any argument regarding what may be done in relation to other property. My opposition to this alleged power is, in no degree, founded upon the object proposed to be accomplished by its exercise. Nor is it, merely, that it is without warrant, and unconstitutional. But it is, moreover, and beyond all this, that a single usurpation, whatever it may be, if once admitted as a constitutional exercise of authority, is fraught with danger to the republic. There was among the highlands in the town of Glover, ermont, a placid lake, which, confined within its natural boundaries, served the beneficial purposes for which its Creator designed it. Some unauthorized persons dug a channel from it, and set a small stream of water in motion through this irregular outlet. The barrier once broken, the water tore away the adjacent banks, increased in volume
pamphlet from his pen, recently published, discussing ‘The War Powers of the President and the Legislative Powers of Congress in Relation to Rebellion, Treason, and Slavery,’ has attracted much attention.”
“William Whiting.—Patriots are too valuable in these days to permit those who are meritorious to pass unnoticed. Among the many instances of devoted patriotism, we know of no one who has sacrificed more of personal interest, or rendered more valuable service to the Government, than William Whiting of Boston. From the purest of motives he has left a lucrative business, and all the comforts of a home in Massachusetts to serve his country in a capacity near to the President, and which involves the most delicate, and at the same time, important responsibilities. For his services he asks no compensation, and by no ordinary means will he ever receive anything like pecuniary consideration for what he is doing for the Government. We have means of knowing, that since his residence in Washington, his influence as a bold and manly advocate of his country's cause, aided by his bright example of self-sacrifice, has given him prominence that few men can reach in a lifetime. We sincerely hope that his labors will continue to be as valuable to the public as they are at present, and that our distinguished friend will see no cause to regret their liberal bestowal.”
“Personal.—WAshingtoN, April 3. Hon. Wm. Whiting, Solicitor of the War Department, while on his way North, was recalled to Washington on important public business last night. He will leave for Boston on Monday next.”