152

ADMINISTRATION OF ABRAHAM LINCOLN.

The view above expressed is further enforced by the clause in the Constitution which follows immediately that which has already been quoted. The second paragraph of the same section provides that "Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or territory not belonging to, this Confederacy." Here there is no direct exercise of power by the States which formed our Constitution, but an express delegation to Congress. It is thus seen that while the States were willing to trust Congress with the power to prohibit the introduction of African slaves from the United States, they were not willing to trust it with the power of prohib iting their introduction from any other quarter, but determined to insure the execution of their will by a direct interposition of their own power.

Moreover, any attempt on the part of the treaty-making power of this Government to prohibit the African slave trade, in addition to the insuperable objections above suggested, would leave open the implication that the same power has authority to permit such introduction. No such implication can be sanctioned by us. This Government unequivocally and absolutely denies its possession of any power whatever over the subject, and cannot entertain any proposition in relation to it.

July 1, General Banks, in pursuance of orders from the Headquarters of the Army at Washington, arrested the four first-named members, for these reasons:

The incidents of the past week afforded full justification for this order. The headquarters, under the charge of the board, when abandoned by the officers, resembled in some respects, a concealed arsenal. After public recognition and protest against the "suspension of their functions," they continued their sessions daily. Upon a for ed and unwarrantable construction of my proclamation of the 2 th ultimo, they declared that the police law was suspended, and the police officers and men put off duty for the present, intending to leave the city without any police protection whatever. They refused to recognize the officers or men neces sarily selected by the provost marshal for its protection, and hold subject to their orders, now and hereafter, the old police force, a large body of armed men, for some purpose not known to the Government, and inconsistent with its peace or security. To anticipate any intentions or orders on their part, I have placed temporarily a portion of the force under my command within the city. I disclaim on While it is totally beneath the dignity of this Govern- the part of the Government I represent, all desire, iutenment to give assurances for the purpose of vindicating it-tion, and purpose to interfere, in any manner whatever, self from any unworthy suspicions of its good faith on this with the ordinary municipal affairs of the city of Baltimore. subject, that may be disseminated by the agents of the Whenever a loyal citizen can be named who will execute United States, it may not be improper that you should point its police laws with impartiality and in good faith to the out the superior efficacy of our constitutional provision to United States, the military force will be withdrawn from any treaty stipulations we could make. The constitution the central parts of the municipality at once. No soldier is itself a treaty between the States, of such binding force, will be permitted in the city, except under regulations satthat it cannot be changed or abrogated without the deliber-isfactory to the marshal; and if any so admitted violate ate and concurrent action of nine out of the thirteen States the municipal law, they shall be punished according to the that compose the Confederacy. A treaty might be abrogated civil law, by the civil tribunals. by a party temporarily in power in our country, at the sole risk of disturbing amicable relations with a foreign Power. The Constitution, unless by approach to unanimity, could not be changed without the destruction of this Government itself; and even should it be possible hereafter to procure the consent of the number of States necessary to change it, the forms and delays, designedly interposed by the framers to check rash innovations, would give ample time for the most mature deliberation, and for strenuous resistance on the part of those opposed to such a change. After all, it is scarcely the part of wisdom to attempt to impose restraint on the actions and conduct of men for all future time. The policy of the Confederacy is as fixed an immutable on this subject as the imperfection of human na ture permits human resolve to be. No additional agreements, treaties, or stipulations can commit these States to the prohibition of the African slave trade with more binding efficacy than those they have themselves devised. A just and generous confidence in their good faith on this subject, exhibited by friendly Powers, will be far more efficacious then persistent efforts to induce this Government to assume the exercise of powers which it does not possess, and to bind the Confederacy by ties which would have no constitutional validity. We trust, therefore, that no unnecessary discussion on this matter will be introduced into your negotiations. If, unfortunately, this reliance should prove ill-founded, you will decline continuing negotiations on your side, and transfer them to us at home, where, in such event, they could be conducted with greater facility and advantage, under the direct supervision of the President. With great respect, your obedient servant,

J. P. BENJAMIN, Secretary of State.

Hon. L. Q. C. LAMAR,
Commissioner, &c., &c., St. Petersburg, Russia.

They were transferred to Fort Lafayette, and on the 6th of August, Judge Garrison of Brooklyn, issued a writ directing Col. Burke to produce the persons in court. Col. Burke declined on the authority of an order from Lieut. Gen. Scott. Col. Burke was then cited to answer for contempt of court, but he did not appear, and August 22, Judge Garrison, "submiting to inevitable necessity," dismissed the proceedings. They were subsequently released. See President's Orders, p. 154.

ARREST OF MEMBERS OF THE LEGISLATURE OF

MARYLAND.

NEWSPAPER ACCOUNT.

By Telegraph to the Associated Press.
BALTIMORE, Sept. 13.-The Provost Marshal, George P.
Dodge, this morning, before day, arrested the Mayor of
Baltimore, Mr. Brown, and Messrs. Chas, S. Pitts, Lawrence
Sangston, S. Teackle Wallis, T. Parkin Scott, and Ross
Winans, members of the Maryland Legislature of Baltimore
city, and F. K. Howard, the editor of the Exchange news-
paper. They were taken to Fort McHenry,

BALTIMORE, Sept. 13.-The following additional arrests have been made: Messrs. Dennison, Quinlan, and Dr. Lynch, members of the Legislature from Baltimore county; and Messrs. Henry M. Warfield, Dr. J. Hanson Thomas, John C. Brune, city members; also, Thomas W. ifall, editor of the South newspaper.

The day of the meeting of the Legislature is Tuesday next, when, it is suspected, further legislation hostile to

Arrests of Citizens, and the writ of the Government was to be attempted. All the arrests made

Habeas Corpus.

were under orders direct from the War Department.

BALTIMORE, Sept. 13.-I just hear of the arrest of Henry June 27, 1861, Major General N. P. BANKS, May, member of Congress; also, Henry M. Morfit and W. commanding the Department of Annapolis, had G. Harrison, members of the Legislature from this city. These, with the names previously sent, complete the ten George P. Kane, Chief of Police of Baltimore, city delegates. Upon the arrest of Gordon, (member of the arrested for being, in contravention of his duty Maryland Legislature,) some days ago, papers were found and in violation of law, by direction or indirec-in his baggage reading like amendments to be offered to a tion, both witness and protector to transactions hostile to the authority of the Government, and to conspirators avowedly its enemies.

Same day, Charles Howard, Wm. H. Gatchell, Charles D. Hinks, John W. Davis, and George Wm. Brown, Mayor and ex-officio member of Board of Police of Baltimore, protested against the arrest of Marshal Kane, and the suspension of the Board of Police, by a militar provost marshal.

proposed secession ordinance to be brought up at the coming

meeting of the Legislature.

BALTIMORE, Sept. 18.-The police are arresting secession members of the Legislature as fast as they reach this city, on their way to Frederick. To-morrow is the day set apart for the meeting of the Legislature, but there can be no quorum present, as nearly three fourths of both Houses are secessionists, all of whom it is presumed, will be arrested. This evening Messrs. Dennis and Heckart, of the Senate, and Messrs. Landing and Raisin, of the House of Delegates, were arrested. There are now fifteen members of the House bers cannot be found, and have, it is said, fled from the and three of the Senate under arrest. Many of the mem

State.

LOUISVILLE, September 19. Early this morning the United States Marshal seized the office of the Louisville Courier, arrested ex-Governor Morehead, Reuben T. Murrett, one of the proprietors of the You will, upon the receipt of this, quietly examine the Courier, and Martin W. Barr, telegraphic news reporter for premises. I am informed that escape will be impossible, if the New Orleans press, on charges of treason or complicity the entrance to the building be held by you, of that you will with treason. The prisoners were all carried to Jefferson-judge upon examination. If no session is to be held, you ville, and will be transferred to the custody of the Marshal of Indiana district.

Everything in the execution of these orders is confided to your secrecy, discretion, and promptness.

The Case of Algernon S. Sullivan.

DEPARTMENT OF STATE,
WASHINGTON, September 10, 1861.

TO DANIEL LORD, Esq., New York:
SIR: I have received your letter of yesterday relating to
Algernon S. Sullivan, a political prisoner now in custody at
Fort Lafayette. This Department is possessed of treason-
able correspondence of that person which no right or privi-
lege of a lawyer or counsel can justify or excuse. The pub
lic safety will not admit of his being discharged.

In view of the many representations made to me in this case, I pray your excuse for giving this letter to the public. With great respect, sir, your obedient servant,

WILLIAM H. SEWARD.

The Case of Robert Elliot.

DEPARTMENT of State,
WASHINGTON, October 4, 1861.

To his Excellency ISRAEL WASHBURN, Augusta, Me.: GOVERNOR: Application has been made to the President for the release of Robert Elliot, a political prisoner held in custody at Fort Lafayette.

It is ordered:

Executive Order No. 2-In Relation to State Prisoners. WAR DEPARTMENT, WASHINGTON CITY, Feb. 27, 1862. First. That a special commission of two persons, one of military rank and the other in civil life, be appointed to examine the cases of the State prisoners remaining in the mil itary custody of the United States, and to determine whether in view of the public safety and the existing rebellion, they should be discharged, or remain in military custody, or be remitted to the civil tribunals for trial.

Second. That Major General John A. Dix, commanding in Baltimore, and the Hon. Edwards Pierrepont, of New York, be and they are hereby appointed Commissioners for the purposes above mentioned, and they are authorized to examine, hear, and determine the cases aforesaid ex parte and in a summary manner, at such times and places as in their discretion they may appoint, and make full report to the War Department.

ORDER OF THE SECRETARY OF WAR. WAR DEPARTMENT, WASHINGTON, November 22, 1862. Ordered-1. That all persons now in military custody, who have been arrested for discouraging volunteer enlistments, opposing the draft, or for otherwise giving aid and comfort to the enemy, in States where the draft has been made, or the quota of volunteers and militia has been furnished, shall be discharged from further military restraint. 2. The persons who, by the authority of the military commander or governor in rebel States, have been arrested and ernment of the United States, and are now in military custody, may also be discharged upon giving their parole to do no act of hostility against the Government of the United States, nor render aid to its enemies. But all such persons shall remain subject to military surveillance and liable to arrest on breach of their parole. And if any such persons shall prefer to leave the loyal States on condition of their not returning again during the war, or until special leave for that purpose be obtained from the President, then such person shall, at his option, be released and depart from the United States, or be conveyed beyond the military lines of the United States forces.

The evidence taken in his case shows that he had not only conceived the purpose of treasonable co-operation in the State of Maine with the insurrectionary citizens arrayed in arms, in other States, for the overthrow of the Government and the Union, but that he had even gone to the extreme length of getting up an unlawful armed force to operate in Maine against the lawful action of the State and of the Federal Government. His associates in that treasonable enter-sent from such State for disloyalty or hostility to the Govprise, since his arrest, have taken an oath of allegiance to the United States. This proceeding is very proper in itself. But the representations they make, that they and he were loyal to the Union at the time when they were combining in arms against it, cannot be accepted, at least in his behalf. It appears that he is too intelligent to misunderstand the legitimate tendency of his criminal acts. He cannot be released. On the contrary, your vigilance in ferreting out the conspiracy and in arresting it, by denouncing it to the Government and the country, is deemed worthy of especial commendation.

If any of the other offenders are still persisting in their treasonable course, you will, I am sure, not fail to give information to this Department.

I have the honor to be, very respectfully, your obedient servant, WILLIAM H. SEWARD.

THE PRESIDENT'S ORDERS.

1862, February 14-The PRESIDENT issued an order reciting the circumstances of the country, the defection of officials in every department, the treason which pervaded and paralyzed every branch of the service, in justification of the resort to extraordinary measures, and adds: Meantime a favorable change of public opinion has occurred. The line between loyalty and disloyalty is plainly defined; the whole structure of the Government is firm and stable; apprehensions of public danger and facilities for treasonable practices have diminished with the passions which prompted heedless persons to adopt them. The insurrection is believed to have culminated and to be declining.

The President, in view of these facts, and anxious to favor a return to the normal course of the Administration, as far as regard for the public welfare will allow, directs that al! political prisoners or State prisoners now held in military custody, be released on their subscribing to a parole engag

ing them to render no aid or comfort to the enemies in hostility to the United States.

The Secretary of War will, however, at his discretion, except from the effect of this order any prsors detained as spies in the service of the insurgents, or others whose release at the present moment may be deemed incompatible with the public safety.

To all persons who shall be so released, and who shall keep their parole, the President grants an amnesty for any past offences of treason or disloyalty which they may have

committed.

Extraordinary arrests will hereafter be made under the direction of the military authorities alone. By order of the President:

EDWIN M. STANTON, Secretary of War. 1862, February 27-The PRESIDENT issued this order:

3. This order shall not operate to discharge any person who has been in arms against the Government, or by force and arms has resisted or attempted to resist the draft, nor relieve any person from liability to trial and punishment by civil tribunals, or by court-martial or military commis sion, who may be amenable to such tribunals for offences committed.

By order of the Secretary of War:

E. D. TOWNSEND, Assistant Adjutant General. ARREST OF JOHN MERRYMAN AND PROCEEDINGS

THEREON.

1861, May 25-John Merryman, of Baltimore county, Md., was arrested, charged with holding a commission as lieutenant in a company avowing its purpose of armed hostility against the Government; with being in communication with the rebels, and with various acts of trea

son.

He was lodged in Fort Mellenry, in command of Gen. Geo. Cadwalader. Me ryman at once forwarded a petition to Chief Justice Roger B. Taney, reciting his arrest, and praying for a writ of habeas corpus and a hearing. The writ was issued for the 27th, to which General Cadwalader declined to respond, alleging, among other things, that he was duly authorized by the President of the United States to suspend the writ of habeas corpus for the public safety. May 27, the Chief Justice issued a writ of attachment, directing United States Marshal Bonifant to produce the body of General Cadwalader on Tuesday, May 28th, "to answer for his contempt in refusing to produce the body of John Merryman." May 28th, the Marshal replied that he proceeded to the fort to serve the writ, that he was not permitted to enter the gate, and that he was informed there was no answer to his writ."

CHIEF JUSTICE TANEY'S REMARKS.

I ordered the attachment yesterday, because upon the face of the return the detention of the prisoner was unlawful upon two grounds.

1. The President, under the Constitution and laws of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so. 2. A military officer has no right to arrest and detain a person, not subject to the rules and articles of war, for an offence against the laws of the United States, except in and of the judicial authority and subject to its control; and if the party is arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority, to be dealt with according to law.

I forbore yesterday to state orally the provisions of the Constitution of the United States which make these principles the fundamental law of the Union, because an oral statement might be misunderstood in some portions of it, and I shall therefore put my opinion in writing and file it in the office of the Clerk of the Circuit Court, in the course of this week.

having the prisoner thus in custody upon these vague and unsupported accusations, he refuses to obey the writ of habeas corpus, upon the ground that he is duly authorized by the President to suspend it.

The case, then, is simply this: A military officer residing in Pennsylvania issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears. Under this order his house is entered in the night; he is seized as a prisoner, and conveyed to Fort McHenry, and there kept in close confinement. And when a habeas corpus is served on the commanding officer, requir ing him to produce the prisoner before a Justice of the Supreme Court, in order that he may examine into the legality of the imprisonment, the answer of the officer is that he is authorized by the President to suspend the writ of habeas corpus at his discretion, and, in the exercise of that discretion, suspends it in this case, and on that ground refuses obedience to the writ.

As the case comes before me, therefore, I understand that the President not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military oflicer, and to leave

After reading the above, the Chief Justice it to him to determine whether he will or will not obey juorally remarked:

In relation to the present return, I propose to say that the marshal has legally the power to summon out the posse comitatus to seize and bring into court the party named in the attachment; but it is apparent he will be resisted in the discharge of that duty by a force notoriously superior to the posse comitatus, and such being the case, the Court has no power under the law to order the necessary force to compel the appearance of the party. If, however, he was before the Court, it would then impose the only punishment it is empowered to inflict-that by fine and imprison

ment.

dicial process that may be served upon him.

No official notice has been given to the courts of justice, or to the public, by proclamation or otherwise, that the President claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there was no differ ence of opinion, and that it was admitted on all hands that the privilege of the writ could not be suspended except by act of Congre s.

When the conspiracy of which Aaron Burr was the head became so formidable, and was so extensively ramified as to Under these circumstances the Court can barely say, to- he claimed, on his part, no power to suspend it, but coinjustify, in Mr. Jefferson's opinion, the suspension of the writ, day, I shall reduce to writing the reasons under which Imunicated his opinion to Congress, with all the proofs in his have acted and which have led me to the conclusions ex-possession, in order that Congress might exercise its discrepressed in my opinion, and shall report them with these tion upon the subject, and determine whether the public proceedings to the President of the United States, and call safety required it. And in the debate which took place upon upon him to perform his constitutional duty to enforce the the subject no one suggested that Mr. Jefferson might exer 1w; in other words, to enforce the process of this Court. cise the power himself, if, in his opinion, the public safety This is all this Court has now the power to do.

Subjoined is the opinion of the Chief Justice:*

Ex parte JOHN MERRYMAN.

demanded it.

Having, therefore, regarded the question as too plain and too well settled to be open to dispute, if the commanding officer had stated that upon his own responsibility, and in the exercise of his own discretion, he refused obedience to

Before the Chief Justice of the Supreme Court of the the writ, I should have contented myself with referring to

United States, at Chambers.

the clause in the Constitution, and to the construction it received from every jurist and statesman of that day, when the case of Burr was before them. But being thus officially notified that the privilege of the writ has been suspended under the orders and by the authority of the President, and believing as I do that the President has exercised a power which he does not possess under the Constitution, a proper respect for the high office he fills requires me to state plainly and fully the grounds of my opinion, in order to show that I have not ventured to question the legality of his act without a careful and deliberato examination of the whole subject.

The clause in the Constitution which authorizes the suspension of the privilege of the writ of habeas corpus is in the ninth section of the first article.

The application in this case for a writ of habeas corpus is made to me under the 14th section of the judiciary act of 1789, which renders effectual for the citizen the constitutional privilege of the writ of habeas corpus That act gives to the courts of the United States, as well as to each Justice of the Supreme Court, and to every District Judge, power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment. The petition was presented to me at Washington, under the impression that I would order the prisoner to be brought before me there, but as he was confined in Fort McHenry, at the city of Baltimore, which is in my circuit, I resolved to hear it in the latter city, as obedience to the writ, under such This article is devoted to the Legislative Department of circumstances, would not withdraw Gen. Cadwalader, who the United States, and has not the slightest reference to the had him in charge, from the limits of his military command. Executive Department. It begins by providing that all The petition presents the following case: The petitioner legislative powers therein granted shall be vested in a Conresides in Maryland, in Baltimore county. While peaceablygress of the United States, which shall consist of a Senato in his own house, with his family, it was at two o'clock, on the morning of the 25th of May, 1861, entered by an armed force, professing to act under military orders. He was then compelled to rise from his bed, taken into custody, and conveyed to Fort McHenry, where he is imprisoned by the commanding officer, without warrant from any lawful authority.

The commander of the fort, Gen. George Cadwalader, by

whom he is detained in confinement, in his return to the writ, does not deny any of the facts alleged in the petition. He states that the prisoner was arrested by order of Gen. Keim, of Pennsylvania, and conducted as a prisoner to Fort McHenry 1y his order, and placed in his (Gen. CadWalader's) custody, to be there detained by him as a prisoner. A copy of the warrant, or order, under which the prisoner was arrested, was demanded by his counsel, and refused. And it is not alleged in the return that any specific act, constituting an offence against the laws of the United States, has been charged against him upon oath: but he appears to have been arrested upon gener: 1 charges of treason and rebellion, without proof, and without giving the names of the witnesses, or specifying the acts, which, in the judgment of the military officer, constituted these crimes. And

For a reply by Hon. Reverdy Johnson, see Moore's Rebellion Record, vol. 2, p. 165.

and House of Representatives." And after prescribing tho manner in which theso two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the legislative powers which it thereby grants, and legislative powers which it expressly prohibits, and, at the conclusion of this specification, a clause is inserted giving Congress "the power to make all laws which may be neces sary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department or office thereof."

The power of legislation granted by this latter clause is by its word carefully confined to the specific objects before enumerated. But as this limitation was unavoidably somewhat indefinite, it was deemed necessary to guard more effectually certain great cardinal principles essential to the liberty of the citizen and to the rights and equality of the States by denying to Congress, in express terms, any power of legislation over them. It was apprehended, it seems, that such legislation might be attempted under the pretext that it was necessary and proper to carry into execution the powers granted; and it was determined that there should be no room to doubt, where rights of such vital importance were concerned, and accordingly this clause is immediately followed by an enumeration of certain subjects to which the powers of legislation shall not

extend; and the great importance which the framers of the Constitution attached to the privilege of the writ of habeas corpus, to protect the liberty of the citizen, is proved by the fact that its suspension, except in cases of invasion and rebellion, is first in the list of prohibited powers; and even in these cases the power is denied and is exercise prohibited unless the public safety shall require it. It is true that in the cases mentioned Congress is of necessity the judge of whether the public safety does or does not require it; and its judgment is conclusive. But the introduction of these words is a standing admonition to the legislative body of the danger of suspending it and of the extreme caution they should exercise before they give the Government of the United States such power over the liberty of a citizen.

It is the second article of the Constitution that provides for the organization of the Executive Department, and enumerates the powers conferred on it, and prescribes its duties. And if the high power over the liberty of the citizens now claimed was intended to be conferred on the President, it would undoubtedly be found in plain words in this article. But there is not a word in it that can furnish the slightest ground to justify the exercise of the power.

The article begins by declaring that the Executive power shall be vested in a President of the United States of America, to hold his office during the term of four years, and then proceeds to describe the mode of election, and to specify in precise and plain words the powers delegated to him and the duties imposed upon him. And the short term for which he is elected, and the narrow limits to which his power is confined, show the jealousy and apprehensions of future danger which the framers of the Constitution felt in relation to that department of the Government, and how carefully they withheld from it many of the powers belonging to the executive branch of the English Government which were considered as dangerous to the liberty of the subject, and conferred (and that in clear and specific terms) those powers only which were deemed essential to secure the successful operation of the Government.

to take care that they be faithfully carried into execution as they are expounded and adjudged by the coordinate branch of the Government to which that duty is assigned by the Constitution. It is thus made his duty to come in aid of the judicial authority, if it shall be resisted by a 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 it to execute its process and enforce its judgments.

With such provisions in the Constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the President, in any emergency or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or arrest a citizen, except in aid of the judicial power. Ife certainly does not faithfully execute the laws if he takes upon himself legislative power by suspending the writ of habens corpus-and the judicial power, also, by arresting and imprisoning a person without due process of law. Nor can any argument be drawn from the nature of sovereignty, or the necessities of government for self-defense, in times of tumult and danger. The Government of the United States is one of delegated and limited powers. It derives its existence and authority altogether from the Constitution, and neither of its branches-executive, legislative, or judicial-can exercise any of the powers of government beyond those-specified and granted. For the tenth article of the amendments to the Constitution, 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 imprisonment by Executive authority, provided for in the fifth article of the Amendments of the Constitution, which I have before quoted, is nothing more than a copy of a like provision in the English constitu tion, which had been firmly established before the Declara tion of Independence.

Blackstone, in his Commentaries, (1st vol., 137,) states it in the following words:

"To make imprisonment lawful, it must be either by process from the courts of judicature or by warrant from some im-legal officer having authority to commit to prison.”

He is elected, as I have already said, for the brief term of four years, and is made personally responsible, by peachment, for malfeasance in office. He is, from necessity, and the nature of his duties, the Commander-in-Chief of the army and navy, and of the militia, when called into actual service. 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 Representatives 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 although the militia, when in actual service, are under his command, yet the appointment of the officers is 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.

And the people of the United Colonies, who had themselves lived under its protection while they were British subjects, were well aware of the necessity of this safeguard for their personal liberty. And no one can believe that in framing the Government intended to guard still more efficiently the rights and the liberties of the citizens against executive encroachment and oppression, they would have conferred on the President a power which the history of England had proved to be dangerous and oppressive in the hands of the Crown, and which the people of England had compelled it to surrender after a long and obstinate strug gle on the part of the English Executive to usurp and retain it.

The right of the subject to the benefit of the writ of haSo, too, his powers in relation to the civil duties and au- beas corpus, it must be recollected, was one of the great thority necessarily conferred on him are carefully restrict-points in controversy during the long struggle in England ed, as well as those belonging to his military character. He between arbitrary government and free institutions, and cannot appoint the ordinary officers of Government, nor must therefore have strongly attracted the attention of make a treaty with a foreign nation or Indian tribe with-statesmen engaged in framing a new and, as they supposed, out the advice and consent of the Senate, and cannot ap- a freer government than the one which they had thrown point even inferior officers unless he is authorized by an off by the Revolution. For, from the earliest history of act of Congress to do so. He is not empowered to arrest the common law, if a person was imprisoned-no matter any one charged with an offence against the United States, by what authority-he had a right to the writ of habeas and whom he may, from the evidence before him, believe corpus to bring his case before the King's Bench, and, if to be guilty; nor can he authorize any officer, civil or no specific offence was charged against him in the warrant military, to exercise this power, for the fifth article of the of commitment, he was entitled to be forthwith discharged; amendments to the Constitution expressly provides that no and if an offence was charged which was bailable in its person "shall be deprived of life, liberty, or property with- character the court was bound to set him at liberty on out due process of law;" that is, judicial process. And even bail. And the most exciting contests between the Crown if the privilege of the writ of habeas corpus was suspended and the people of England from the time of Magna Charta by act of Congress, and a party not subject to the rules and were in relation to the privilege of this writ, and they conarticles of war was afterwards arrested and imprisoned by tinued until the passage of the statute of 31st Charles 2d, regular judicial process, he could not be detained in prison or commonly known as the great habeas corpus act. This brought to trial before a military tribunal, for the article in statute put an end to the struggle, and finally and firmly the Amendments to the Constitution immediately following secured the liberty of the subject from the usurpation and the one above referred to-that is, the sixth article-pro- oppression of the executive branch of the Government. vides that, "in all criminal prosecutions, the accused shall en- It nevertheless conferred no new right upon the subject, joy the right to a speedy and public trial by an impartial jury but only secured a right already existing; for, although of the State and district wherein the crime shall have been the right could not justly be denied, there was often no efcommitted, which district shall have been previously ascer- fectual remedy against its violation. Until the statute of tained by law, and to be informed of the nature and cause the 13th of William III the judges held their offices at the of the accusation; to be confronted with the witnesses against pleasure of the King, and the influence which he exercised him; to have compulsory process for obtaining witnesses in over timid, time-serving, and partisan judges often induced his favor, and to have the assistance of counsel for his them, upon some pretext or other, to refuse to discharge defence." the party although he was entitled to it by law, or delayed their decisions from time to time, so as to prolong the imprisonment of persons who were obnoxious to the King for their political opinions, or had incurred his resentment in any other way.

And the only power, therefore, which the President posBesses, where the "life, liberty, or property" of a 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 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

The great and inestimable value of the habeas corpus act of the 31st Charles II is that it contains provisions which compel courts and judges, and all parties concerned, to per