I have premised this much in order to show the separate and independent character of the several departments of our Government and to indicate the inevitable differences in their modes of action and the characteristic diversity of the subjects upon which they operate; and all this as a foundation for the answers which I will now proceed to give to the particular questions propounded to me.
As to the first question: I am clearly of opinion that, in a time like the present when the very existence of the nation is assailed by a great and dangerous insurrection, the President has the lawful discretionary power to arrest and hold in custody persons known to have criminal intercourse with the insurgents or persons against whom there is probable cause for suspicion of such criminal complicity. And I think this position can be maintained in view of the principles already laid down by a very plain argument.
The Constitution requires the President before he enters upon the execution of his office to take an oath that he "will faithfully execute the office of President of the United States and will to be best of his ability, preserve, protect and defend the Constitution of the United States. "
The duties of the office comprehend all the executive power of the nation which is expressly vested in the President by the Constitution (art. 2, sec. 1) and also all the powers which are specially delegated to the President and yet are not in their nature executive powers. For example; the veto power; the treaty making power; the appointing power; the pardoning power. These belong to that class which in England are called prerogative powers, inherent in the crown. And yet the framer of our Constitution thought proper to preserve them and to vest them in the President as necessary to the good government of the country. The executive powers are granted generally and without specification; the powers not executive are granted specially and for purposes obvious in the context of the Constitution. And all these are embraced within the duties of the President and are clearly within that clause of his oath which requires him to "faithfully execute the office of President. "
The last clause of the oath is peculiar to the President. All the other officers of Government are required to swear only "to support this Constitution," while the President must swear to "preserve, protect and defend" it, which implieerform what he is required in so solemn a manner to undertake. And then follows the borad and compendious injunction to "take care that the laws be faithfully executed. " And this injunction embracing as it does all the laws - Constitution, treaties, statutes - is addressed to the President alone and not to any other department or officer of the Government. And this constitutes him in a peculiar manner and above all other officers the guardian of the Constitution - its preserver, protector and defender.
It is the plain duty of the President (and his peculiar duty above and beyond all other departments of the Government) to preserve the Constitution and execute the laws all over the nation; and it is plainly impossible for him to perform this duty without putting down rebellion, insurrection and all unlawful combinations to resist the General Government. The duty to suppress the insurrection being obvious and imperative the two acts of Congress of 1795 and 1807 come to his aid and furnish the physical force which he needs to suppress the insurrection and execute the laws. These two acts authorize the President to employ for that purpose the militia, the Army and the Navy.
The argument may be briefly stated thus: It is the President's bounden duty to put down the unsurrection as (in the language of the