NEWS OF 150 YEARS AGO
October 1862
From The Missouri Democrat, Saturday, October 25, 1862.
THE PROCLAMATION AND THE CONSTITUTION.
Civil war is something so entirely new to our people that they can scarcely realize its actual bearings upon national affairs. It is quite as much from the force of habit as from any course of reasoning that we hear so much said about the prosecution of the war according to the Constitution. Having been so long accustomed to do everything in pursuance of some fixed formula of law, we are scarcely yet able to conceive how anything can be done without the express warrant of some written statute. Hence, we are glibly told that the President’s proclamation is not legal, except so far as it rests immediately upon some express law of Congress which could sustain at least but the minor portion of it.
This grand mistake, for such we regard it, grows out of a failure to distinguish between the condition of things in peace and war. Those who oppose the proclamation on the ground above stated, are in favor of the prosecution of the war upon peace principles. They argue as if armies were to be moved according to acts of Congress, and as if our generals were merely executive officers to enforce orders from that quarter. To carry out their idea, a campaign in the field should be conducted with the same reference to legal forms as a suit at law in our of our courts of record. A general, having made up his mind to attack the enemy, should serve sufficient notice upon him of his intention, setting out the grounds and reasons for the contemplated proceeding. The enemy should reply in due time, setting out the grounds upon which he considered himself entitled to victory. The issue being thus made up, upon a day fixed for the purpose beforehand, the two armies should come together and fight the battle out. That would be war according to legal principles, but it would not be war as war has ever been carried on since the world began. The fact is, that war is something which cannot be conducted by Senates and Houses of Representatives. It can only be managed by Generals. Hence, as we contend, the Constitution having appointed the President of the United States Commander-in-Chief of the army and navy, has wisely left the management of war to him rather than to Congress. Congress can vote or withhold appropriations for the support of the troops, but when they are in the field they were never intended to be immediately subordinate to any power except the commander over them. If they are to look to Congress for all their orders, a formal law would need to be passed every time they were to be moved, and every time a battle was to be fought. Think of an army in Tennessee, Kentucky or Missouri receiving its marching orders from Congress in session in Washington City!
It is idle, therefore, to talk of the President having no power in the prosecution of the war except what Congress has given him. The Constitution never intended to put such restriction upon him when it placed him at the head of the national armies. If, then, the President has the power under the Constitution to move armies and fight battles independent of Congressional authority, he can, in a like manner, do everything consistent with the laws of civilized warfare necessary to put down the enemy. He can not only fight him in the field, and deprive him of life, but he can take or destroy his property or use it according to the exigencies of the occasion. If he can do all this legally under the Constitution, why cannot he constitutionally appropriate or destroy the slave property of the enemy, so soon as he becomes convinced of the military necessity for the step?