War of the Rebellion: Serial 114 Page 0580 PRISONERS OF WAR, ETC.

Search Civil War Official Records

the appropriation for its support and thus disband it if in their judgment the President usedor designed to use it for improper purposes. And although the militia when in actual service are under his comman yet the appointment of the officers is reserved to the States as a security against the use of the military power for purposed dangerous to the liberties of the people or the rights of the States.

So too his powersin relation to the civil duties and authority necessarily conferred on him are carefully restricted as well as those belonging to his military character. He can not appointthe ordinary officers of Government nor make a treaty with a foreging nationor Indian tribe without the advice and consent of the Senate and can not 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 offense against the United States and whom he may from the evidence before him believe to be guilty; nor can beauthorize any officer civil or military to exercise this power, for the fifth article of the amendments to the Constitution expressly provides that no person 'shall be deprived of life, liberty or property without due process of law; " that is judicial process. And even if the privilege of the writof habeas corpus was suspended by act of Congress and a 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 a military tribunal, for the article in the amendments to the Constitution immediately following the one above referred to-that is the sixth article-provides that "in all criminal prosecutions the accused shall enjoy the right to a 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 ascertained by law, and to be informed of the nature and cause of the accusation; to the confronted with the witnesses against him; to have compulsory process for obtaining witnesses in 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 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 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. He certainly does not faithfully execute that laws if he takes upon himself legislative power by suspendingthe writ of habeas corpus-and the judicial power also by arresting and imprisoning a persons 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