Year: 1861

He is elected, as ! have already said, for the
brief term of four years, and is made personally
responsible, by impeachment, for malfeasance in
ofhce. DE Is from necessity and the nature of
his duties the commander-in-c chief of the army
and navy, and of the militia when called into ac-
tive service. But no appropriation for the sup
port of the army can be made for longer term
than two years, so that it is in the power of the
succeeding House of Representatives to withhold
the appropriation for its support, and thus disband
1t, If IN their judgment the President used or de
signed TO use It Tor improper purposes. And al
though the militia, when in actual service, are
under his command vet the appointment of the
officers rs reserved TO the States, as a security
against the use of the military power for purposes
dangerous to the liberties of the people or the
rights of the States


So, too, his powers in relation to the civil duties
and authority necessarily conferred on him are
carefully restricted well as those belonging to
his military character. He can not appoint the
ordinary officers of Government nor make
treaty with foreign nation or Indian tribe with
out the advice and consent of the Senate, and can
not appoint even inferior officers unless he is au-
thorized by an act of Congress to do so He il
not empowered TO arrest any one charged with
an offence against the United States, and whom
he may, from the evidence before him, believe to
be guilty, nor can he authorize any officer civil
or military, to exercise this power, for the 5th
article ofthe amendment of the Constitution ex-
pressly provides that no person ''shall be de-
prived OF life, liberty or property, without due
process of law"-that is, judicial process.


And even if the privilege of the writ habeas
corpus was suspended by act of Congress, and a
party not subject to the rules and articles of war;
was afterward arrested and imprisoned by regular
Judicial process, he could not be detained IN
prison or brought forward to trial before mill
tary tribunal for the article in the amendments
to the Constitution Immediately following the
one above referred to-that is, the sixth article
provides that ain all criminal prosecutions the
accused shall enjoy the right to speedy and
public trial by an impartial jury of the State and
district wherein the crime shall have been com
mitted. which district shall have been previously
ascertained by law, and to be informed of the
nature and cause of the accusation; 10 be con-
fronted with the witnesses against him; to have
compulsory process for obtaining witnesses i'm his
favor, and to have the assistance of counsel for
his defense"


And the only power, therefore, which the
President possesses, where the "life liberty or
property" of private citizen is concerned, is the
power and duty prescribed in the third section of
the second article, which requires "that he shall
take care thatthe laws be faithfully executed" J"
He is not authorized to execute them himself, or
through agents officers, civil or military, ap-
pointed by himself, but he is to take care that
they are faithfully carried into execution they
are expounded and adjuged by the CO ordinate
branch OF the Government, to which that duty is
| assigned by the Constitution. Ii is thus made
his duty to come in aid of the judicial authority.
lift shall be resisted by force too strong to be
overcome without the assistance Of the executive
arm. But in exercising this power he acts in
subordination to judicial authority, assisting il TO
exec lite its process and enforce its judgments.
| With such provisions in the Constitution, ex-
I
| by any one, can see no ground whatever for
supposing that the President in any emergency
or in any state of things, authorize the sus-
pension of the privilege of the writ of habeus
pus, or arrest citizen, except in aid of the judi
| cial power He certainly does not faithfully exc
cute the laws il he takes upon himself legislative
power by suspending the writ of habeGs corpus
and the judicial power also, by arre;ting and i'm
prisoning person without due process of law
Nor can any argument be drawn from the nature
of sovereignty, or the necessities of Government
for sef-defense in times of tumult and danger.
The Government of the United States Is one
of delegated ard limited powers 1t derives its
existence and authority altogether from the Con-
stitution, and ei.her of its branches, executive
| legislative or judicial, can exercise any of the
powers o.. Government beyond those specified and
granted. For the tenth article of the amend
ments to the Constitution in express terms pro


vides that "the powers delegated TO the United
States by the Constitution, nor prohibited by il to
the States are reserved to the States respectively


or to the people"


Indeed the security against imprisonment by
| Executive authority, provided for in the 5th
article of the amendments of the Constitution,


which l have before quoted, is nothing more
than copy of like provision in the English
i Constitution, which had been firmly established
before the Declaration of Independence.


rTha learned Tudpe rnakes c,,nious extracfs


from the authorities to show the analogy between


the English law and our own in relation to the


right of habeas corpus writs in all cases, and


cites the opinions of Judges Story and Marshall


npon the habeas corpus clausein the Constitution
concluding follows:


Il But the documents before me show that the


military authority in this case has gone far be


yond the mere suspension of the privilege of the


writ of habeas corpus. 1t has, by force of arms


thrust aside the judicial authorities and officers


to whom the Constitution has confded the power


and duty of interpreting and administering the
laws, and substituted military government ir


its place. to be administered and executed By


military officers. For at the time these proceed.
: ings were had against John Merryman. the Dis


trict Judge of Maryland, the Commissioners ap


pointed under the act of Congress, the District


Attorney and the Marshal all resided in the city
of Baltimore, few miles only from the home oi


the prisoner.


Up to that time there had never been the


slightest resistance obstruction to the process


of any court or judicial officer of the United
States in Maryland, except by the military au-
thority And if n military officer, or any person


had reason to believe that the prisoner bad com
mittcd any ofense against the laws of the United


States, it was his duty to give information of the


fact and the evidence 10 support it, to the District
Attorney; and IT would then have become the


duty of that officer to bring the matter before the


District Judge or Commissioner, and If there was


sufficient legal evidence to justify his arrest the
. Judge or Commissioner would have issued his


warrant to the Marshal TO arrest him; and upon


the hearing of the party, would have held him to


bail, or committed him for trial, according TO the


character of the offense it appeared in the ties
, timony, or would have discharged him immedi


ately, if there was not sufficient evidence to sup


port the accusation.


There was no danger Of any obstruction or re


sistance TO the action of the civil authorities, and


therefore no reason whatever for the inerpositior


of the military. And yet, under these circum
stances. military officer stationed in Pennsylva
mia. without giving any information TO the Dis
trict Attorney, and without any application 10 tn,
judicial authorities. assumes TO himself the judi
{ cial power in the District of Maryland; under


takes to decide what constitutes the crime of
son rebellion, what evidence Of indeed he re
quired any is sufficient to support the accusation
and Justify the commitment, and commits tn


party without having hearing even before him
G self, to close custody in strongly garris me
fort. to be there held. it would seem, during tn
, pleasure of those who committed him.


e The Constitution provides, as have befor
e sad that mo person shall be deprived of life. lib
= erty property without due process of law"


eclares that 1.-THE right of the people to be secur
S in their persons. houses, papers and effects
against unreasonable searches and seizures, sbal
) not be violated, and no warrant shall issue, ex
8 cept upon probable cause, supported by oath o
V affirmation, and particularly describing the pac
: to be search. and the persons or things to b
V seized. II provides that the party accused sha
h be entitled TO speedy trial by court of justice


And these great and fundamental laws, whic
It Congress itself could not suspend, have been di:
e regarded and suspended, like the writ of habea
l. corpus, by military order supported by force
e arms Such is NE case now before me, and
x can only saw that III the authoriv which the Cor