War Power of the President

6 make him a despot. Undoubtedly he must judge in the first instance —there is no alternative—-just as a man whose life is assailed, must judge immediately what degree of force is necessary to repel the attack and protect his own life. But it stands the President in hand to judge wisely, just as it does the individual. The man who kills his assailant unnecessarily, will not be held guiltless by a court and jury, who are the final judges of the transaction. Exactly so with the President. His government is assailed, and its life imperilled by armed and unarmed traitors. The Constitution empowers him to do everything that is necessary to suppress these traitors, all of them, to the end that the life of the government may be saved—just as the law empowers an individual to do everything necessary to suppress an assassin to save his own life. But beyond this necessity, the President has not an iota of power more than any other man. While he may lawfully shoot down armed and resisting rebels, because they cannot be otherwise suppressed, to take the lives of unarmed rebels in the North, or of prisoners taken in arms, would be murder, because their further aid to the rebellion can be suppressed by imprisonment. To take their lives is, therefore, not necessary, and not constitutional. And while he may lawfully suppress disloyal practices in the North, by imprisoning their authors, because such is the mildest efficient means to that end, and therefore necessary to the suppression of the rebellion, the imprisonment of any other persons would be unconstitutional and false, and the President and every other person engaged in it would be personally liable in law for the same. Such is the constitutional theory upon which we are authorized to make war against rebellion. The President and his subordinates are, therefore, under a delicate and terrible responsibility. While the Constitution requires him to do anything and everything necessary to suppress all men who, in any manner, or in any degree aid the rebellion, the courts will hold them accountable for any acts beyond this; and Congress cannot relieve them from this responsibility. To do so would be to authorize the violation of the Constitution, and it is scarcely necessary to say that such an act would be null and void. Inasmuch as the President has constitutional power to do all that is necessary to suppress rebellion, he needs no protection from Congress for the exercise of this power ; and as there is no power anywhere in the government to go beyond this, I think it is self-evident that Congress cannot grant any power in the premises ; and if it cannot do this, it cannot relieve the President or anybody else from the legal consequences of a usurpation.