Year: 1861

But no appropriation for the support of the
army can be made by Congress for a longer
term than two years, SO that it is in the
power of the succeeding House of Represen-
tatives to withhold the appropriation for its
support, and thus disband it, if in their
Judgment, the President used or designed
to use it for improper purposes. And al
though the militia, when in actual service,
are under his command, yet the appoint
ment Of the officers is reserved to the States,
as security against the use of the military
power for purposes dangerous to the liber-
ties of the people or the rights of the States.
So too, his power in relation to the civil
duties and authority necessarily conferred
on him, are carefully restricted as we'll as
those belonging to his military character.
He cannot appoint the ordinary officers of
{ government, nor make treaty with for
) eign nation, or Indian tribe without the ad-
vice and consent of the Senate, and cannot
appoint even inferior officers, unless he is
authorized by an act Of Congress to do SO.


He is 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 Of
J, the amendments to the constitution express
/, ly provides that ''no person shall be depriv-
ed Of life, liberty or property without due
process of law"-that is judicial process. -
f And even if the privilege of the writ of Aa-
beas corpus was suspended by act Of Con-
gress, and party not subject to the rules
and articles of war was afterwards arrested
and imprisoned by regular judicial process
he could not be detained in prison or brought
to trial before military tribunal, for the
article in the amendments to the constitu-
ton Immediately following the one above
referred to-that is, the 9th article, provides
that-''In all criminal prosecutions the ac-
cused shall enjoy the right to speedy and
public trial by an impartial jury of the State
and district wherein the crime shall have
been committed, which district shall have
been previously ascertaincd by law, and to
be informed Of the nature and cause of the
accusation; to be confronted with the wit
nesscs against him; to have compulsory
process for obtaining witnesses in his favor,
and to have the assistance of counsel for lis
Defence"


And the only power, therefore, which the
Fres1denJ possesses, wlIuzo lire, iiDerty,
or property" of a private citizen is concern
cd is the power and duty prescribed in the
third section of the second article, which
requires '.that he shall take care that the
laws be faithfully executed" He is not
authorized to execute them himself, or
through agents or officers, civil or military,
appointed by himself, but he is to take care
that they be faithfully carried into execu-
ton, as they are expounded and adjudged
by the coordinate branch of the govern
ment, to which that duty is assigned by the
constitution. It is thus made his dpty to
come in aid Of the judicial authority if it
shall be resisted by force too strong to be
overcome without the assistance of the ex-
ecutive arm. But in exercising this power,
he acts in subordination to the judicial au-
thority, assisting it to execute its process
and enforce its judgments.


With such provisions in the constitution,
expressed in language too clear to be mis-
understood by any one, [ can see no ground
whatever for supposing that the President,
in any emergency, or in any state of things,
can authorize the suspension Of tho privilege
of the writ of habeas corpus, or arresta citi-
zen, except in aid of the judicial power
He certainly does not faithfully execute the
laws, if he takes upon himself Legislative
power by suspending the writ of habeas cor
pus-and the judicial power also, by arrest
ing and imprisoning person without due
process of law. Nor can any argument be
drawn from the nature of sovereignty, or
the necessities Of government for self-defcnse
in time of tumult and danger. The govern
5 ment of the United States is one of dclega-
ted and limited powers. 1t derives it's ex-
istence and authority altogether from the
, constitution, and neither of its branches,
, Executive, Legislative, Or Judicial, can ex-
ercise any of the powers Of government be-
, yond those specified and granted. For the
10th article of the amendment to the con-
; stitution in express terms. provides that
''the powers not delegated to the United
| States by the constitution, nor prohibited
, by it to the States, are reserved to the States
respectively, Or to the people,


Indeed, the security against imprison-
ment by Executive authority, provided for
in the fifth article Of the amendments Of the
constitution, which have before quoted, is
f nothing more than copy Of like provision
in the English constitution, which had been
firmly established before the Declaration of
Independence.


Blackstone, in his Commentaries LIST
vol. p 1870 states it in the following words:


''To make imprisonment lawful it must
be either by process from the Courts of Ju-
dicature Or by warrant from some legal Off
Ger having authority to commit to prison. .
And the people of the United Colonies, who
had themselves lived under its protection
while they were British subjects, were we'll
aware Of the necessity of this safeguard Of
their personal liberty And no one can be-
licve that in framing government intended
to guard still more efficiently the rights and
liberties Of the citizen against Executive
encroachmcnt and oppression, they would
have conferred on the President a power
which the history of England had proved to
be dangerous and oppressive ia the hands of