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Qass. Book.

SPEECH

OP

HO]^. SAMUEL SHELLABARGER,

OF OHIO,

ON

THE HABEAS CORPUS

DELIVERED

IN THE HOUSE OF REPRESENTATIVES, MAY 12, 1862,

WASHINGTON:

PRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 1862.

M 17, 3<J

SPEECH

The House being in Committee of the Whole on the state of the Union —

Mr. SHELLABARGER said:

Mr. Chairman: At this time in our public affairs I earnestly deprecate all mere partisan con- tests. They are unworthy of us now in the midst of the struggles of a great people for national life. Surely, when the issues of life or death are immi- nent and impending in the deadly strife of battle, and when the existence of free institutions among men depends upon the events of a day of blood, it is fit that the Representatives of the people should comprehend the solemn dignity of the events by wh ich God 's providence has surrounded them. At such a time how mean, how vulgar, how intensely low are the tricks, the jugglery, and the grimaces of the political ring-master, exhibited within, or sent out from the Halls of the American Congress. What an appetite that must be which goes down now from the sublime mountains of responsibility and opportunity for our country's deliverance, to matten on the moor and feed upon the garbage of effete partisanship. This bad taste has a general application now to all parties. I apply it to individuals of neither.

But, sir, if this weie a mere matter of taste, there should be no dispute. But, sir, it is not. Recently, distinguished members of this House have chosen to arraign before this country and tlie world the present Executive of this nation in lan- guage which is calculated, I would fain iiope not intetuled, to destroy the power of that Executivp for the deliverance of the nation from this unnai- ural and causeless rebellion. This cannot be over- looked by the friends of the Government. Among other grave charges contained in that address is one which alleges that" the history of the Admin- istration for the twelve months past has been, and continues to be, a history of repeated usurpations of power and of violations of the Constitution, and ofthe public and private rights of the citizen." Thisaddressalso alleges thafforsixtyyearsfrora the inauguration of Jefferson, on the 4ih of March, 1801, the Democratic party, with short intervals,

controlled the power and the policy of the Federal Government:" and^itavers thatduringall thistime "public liberty was secure, private rights undis- turbed; every man's house was his castle; the courts were open to all; no passports for travel, no secret police, no spies, no informers, no bas- tiles; the right to assemble peaceably; the right to petition; freedom of religion, freedom of speech , a free ballot, and a free press; and all this time the Constitution maintained and the Union of the States preserved." This address, moreover, avers that the " first step towards a restoration of the Union as it was is to maintain the Constitution as it is;" and that " neither the ancient principles, the policy, nor the past history of the Democratic party require nor would justify its disbandment. Is there anything in the present crisis which de- mands it? The more immediate issue is, to main- tain the Constitution as it is, and to restore the Union as it was;" and afterwards declares, in al- luding to certain proceedings to save the Union in the Thirty-Sixth Congress, that " at every stage, the great mass of the South, with the whole Dem- ocratic party, and the whole Constitutional Union party, ofthe North and West, united in favor of certain amendments to the Constitution — and chief among them tlie well-known " Crittenden propo- sitions," which would have averted civil war and maintained the Union. At every stage, all pro- posed amendments inconsistent with the sectional doctrines of the Chicago platform were strenu- ously and unanimously resisted and defeated by ,llie Repulslican party."

Now, Mr Chairman, I have neither taste, in- cHnation, or heart to analyze or discuss the logic or truth of this remarkable paper. ! allude to it for no such purpose. An allusion to a single fea- ture will sufficiently indicate, to the intelligent American people to whom it is addressed, its mas- terly logic; and an allusion to another its char- acter for veracity. It assures us first that the Re- publican party destroyed the Union by adhering to the Constitution " as it is,^' and by refusing to alterit; and second, that that Union is now to be re-

stored by doing; the very thino; wliich destroyed it, lo wit, by " maintaining the Constitution as it is !" And this logic is sondmirabh^ in the judirment of its nuihors, that it is lionored and illuminated, in the addnss, by being set up in magnificent capi- tals! This is enoiigli for the logic. Now for the truth. Notice again the already cited extract, sol- emnly averring to this nation that duriiij; the en- tire sixty years of Democratic rule, from 1801 and down to Mr. Lincoln's administration and includ- ing Mr. nuchanan's, " public liberty was secure, private rights undisturb.d, every man's house his castle, the courts open to all, no passports for travel, no secret police, no spies, no informers, no bastiles, the right to assemble peaceably, the right to petition, freedom of religion, free sjieech, a free ballot-box, a free press, aiui all tliistime the Con- stitution maintained and the Union of the States preserved."

Now, glance at the results of sixty years of Democratic compromise with slave rule. Look at that century plant, so tenderly tended and wa- tered for these sixty years of Democratic culture, which at last bloomed justas the sun wont down on its golden age. Ay," sir, to use the language of this address, look at "the choTce fruits of Demo- cratic principles and policy, carried out through the whole period during whicli the Democratic party held the power and administered the Fed- eral Government, "and which the nation plucked, full ripe, from the hands of the last Democratic Administration, about every officer of which was of that party.

Sir, the Treasury had been litprally robbed by its custodian. Tiie vessels of the Navy, with, I be- lieve, the solitary exception of two ships — the Brooklyn and the' Relief— were eitherdismantled or sent to foreign seas as a preparation for the in- ception of the rebellion. The arms of the Gov- ernment had been dispatched to southern arsenals aiid depots to arm the impending revolt. Senators were openly engaged in the Senate, and ministers in the offices of State, in maturing and consummat- ing the overthrow of the Constii^ition. The Presi- dent had, in obedience lo the demand of these con- spirators,so modified his message to Congress as to virtually license the rebellion, asa thing which, thougli unlawful, the Government had no power to arrest. Senators on the floor of their Chamber had boasted that the.se Halls should soon be the " dwellingplac'cofthcowlsandthe bats." Others had, in the saine Halls, boasted that the trees of Texas were then ornamented with the bodies of murdered citizens, hung for opinion's sake. Armies of murderer.*!, assassins, and traitors pos- ses.sed the capital, and hedged up all the approaches to it, so thai ihe incoming Executive could only reach his seat ai peril of life. Other armies were irapidly concentrating and rushing to the seat o' •Government, sworn to the total destruction and overthrow of the Government and all its constitu- tional ministers and officers. Every southern fort and arsenal and navy-yard and mini and custom- house and revenue ship had been either sei2ed and wrested from the Government by the hand of the very leaders of that southern Democracy, or were in imminentperil of h-.ing so seized and destroyed. One half of the officers of i lie Army and Navy had

taken perjury upon their consciences and the sin of Iscariot into their souls, by betraying and tak- ing arms against the Government which fed them. The feeble bands garrisoning our forts were men- aced with death and starvation by these same con- spirators. About one third the States had avow- edly withdrawn from the Union, and some othei|j were about lo depart. The courts of the United States were closed in every one of these States by violence or by the treason of the judges and marshals. Two hundred millions of indebted- ness to northern citizens, contracted in a large part for the very purpose of being repudiated, was in fact totally repudiated in these seceded States, and all courts, agencies, and modes of col- lection were closed or destroyed. The Constitu- tion of the Government was avowedly and practi- cally superseded and annulled by another adopted by the conspirators; and that in total neglect or express violation of the votes of the people. The voice of the people against the treason was stifled by the use of arms stolen from the Government, and used to compel submission at the ballot-box. Tens of thousands of the loyal citizens of the South were stripped of all their estates and ban- ished fi'om their homes forever, for no other crime than of being suspected of loyalty to their beloved Government. Other thousands whipped, some with thongs, some with thorns, and some with wires of steel and iron, upon naked bodies, only for lovijig too well the Governmenl of Washing- Ion. Other thousands were murdered sometimes before the eyes of their own wives and children for the same offense. So'me hung, some impaled, some drowned, some suffocated by being inclosed in barrels, some starved, some shot, and some roasted alive at the stake; and all this, until not a single citizen whom murder and violence could de- stroy or banish was left in all this seceded South who was loyal to the Constitution. The freedom of speech and the press for the defense of the Gov- ernment was totally destroyed and unknown, and every man who dared to even vindicate these, was either assassinated or banished from the land, upon edicts like that of a Democratic candidate for President — Mason, of Virginia.

Sir, if the sickening details of individual out- rage vvere not too enormous in extent, and too shocking in brutality to admit of particulariza- tion, the chronicler of this despotism, would put Nero and Caligula to the blush. It would render Philip II eminently humane and hospi table, woultl record robberies at Wilmington, North Carolina; the murder of citizens of New Jersey at Charles- ton; imprisonments, robberies, and, at last, ban- ishment sal Savannah; murders of citizens of New Oirleans, at Abbeville; roasting alive at a tree a man in Harris county, Georgia; the murder of Crawford, and the murder, robbery, or banish- ment of two hundred others in Tarrant county, Texas, including three Methodist ministers of the gospel; the imprisonment of women at Charles- ton; imprisonment and ultimate banishment of a citizen of New Hampshire at Charleston; the scourging almost to death of an aged man and iiis son at Enrico Mills, Georgia, and afterwards cruel imprisonment; the robbery, assassination, and murder of whole communities in East Tennessee;

and all this without even the suspicion of any other crime than loyalty to the Government of the United States.

But, sir, I have no inclination for such shock- ing recitals. The whole South was literally deluged with blood and assassination, until it vomited from it everything that was like free speech, a free press, or a free religioH, and every man who was known to be loyal to the Constitu- tion of the United States. One universal pall of unmitigated night of despotism settled down upon all that vast, beautiful, but God-forsaken land. And such was tlie condition of the Republic at the time when this address tells us " public liberty was secure, private rights undisturbed, every man's house his castle, courts open to all, no passports for travel, no spies, no informers, no bastiles, no secret police, the right to assemble peaceably, the right to petition, freedom of religion, freedom of speech, a free ballot, a free press, and all tliistime the Constitution maintained and the Union of the States preserved."

I put these startling facts of fearful and bloody liistory in contrast with the startling averments of this address, not to aver or intimate that the great mass of the loyal and patriotic Democracy of the North are intentionally responsible for these huge wickednesses, for they are not, and such an assertion would be most unworthy and unjust. But I do it in self-defense against the most reck- less and unmitigated sianderof this address, which imputes the authorship of all these horrors and of this ruin to those who elected and who support this Administration;^a ruin which they brought by leaving " the Constitution as it is," and by declin- ing again to compromise away the Consiitutio)!, under a threat of its destruction, at the bid of the slave power. But I especially and emphatically point to this history to say that that very south- ern Democracy, which held in its hand the powers of this Government during these sixty years boasted of in the address, and which controlled the national Democracy, is responsible for and is the infernal architect and author of all this Jiideous ruin.

Here, Mr. Chairman, I leave the logic and the veracity of this address to consider that other ac- cusation which it contains, that the history of this Administration " has been and continues to be a history of repeated usurpations of power and of violations of tlie Constitution and of the public and private rights of the citizen." I shall con- sider now but one, but that the most prominent, specification usually pointed to in vindication of this denunciation of the President. It is that he has despotically and unconstitutionally deprived the citizen of liberty.

Mr. Chairman, in England and America, in this House and in the Senate, by the British minister residing at this Government, and by the London Times, by Jefferson Davis and my colleague, [Mr. Vallandigham,] the President of the United States lias been denounced as a tyrant and despot, be- cause he has ordered certain conspirators engaged in attempts to overtlirow the Government to be arrested and detained in military custody. And my colleague proposes, by a bill now pending in rh is Howee, to imprison the Prcsidentof the United

States for not e.Kceeding two years if he shall re- peat the conduct of which he has been guilty in the imprisonment of Merryman and his confed- erates. And, sir, within a few days of the time I speak, in this House, this conduct has been de- clared to be, in the opinion of most distinguished members, illegal and arbitrary. These charges and the grounds of them I propose to consider.

The importance of these considerations cannot be overstated. They touch the heart of the Con- stitution; and decided one way or the other, they decide its life. I shall make no apologies for at- tempting to contribute my mite to what I deem the correct conclusions touching it. I shall, there- fore, proceed without a single other preliminary remark to the question which this bill involves, to wit, to whom does the Constitution intrust the power of suspending the privilege of the writ of habeas corpus ?

The clause which authorizes this suspension is in these words:

" Tlie privilege of the writ of habeas corpus shall not be siispijndPtl milcss wiion, in cases of rebellion and invasion, tlie public safety may require it."

One class of opinion maintains that Congress alone can suspend the " privilege;" another that the President iriay do so in the events stated in the Constitution when it may be done. I maintain the latter view, and proceed to consider, first, the ar- guments in favor of the former class of opinions; and second, those in favor of the latter.

The first argument generally presented ascrib- ing this power exclusively to Congress is that section nine of article two of the Constitution is one exclusively devoted to restraints upon the powers of Congress, and that it would be uni-ea- sonable to suppose that one restraint upon the Pres- ident's powers was wrested from its natural place in the Constitution in that second article which does relate to the President's powers, and was placed in a family to which it did not belong of the powers of Congress. This argument purports to be based upon what is a sound rule of legal in- terpretation, and which rule the law expresses in its technical language by the terms noscitur a sociis. If the facts upon which the argument is based were as they by this argument are assumed to be, it would be a very strong argument against the position I maintain. But it is singular that an argument should be based upon a state of facts which facts are disproved by simply reading the Constitution. This assumption of fact involves in it a double error: first, in assuming that all the other clauses of this section nine are prohibitions on the powers of Congress; and second, in assum- ing that there is no other quality belonging to tliis clause as to the habeas corpxis which makes it like its fellows in the ninth section, and makes it, therefore, proper to be jilaced where it is. Both of these facts are assumed by this argument, and both are refuted by simply reaKJirig the Constitu- tion.

Now, it is plain that if this ninth section does contain one other clause than that under consider- ation, which is a prohibition upon the acts and powers of the Executive, then this one exception totally anniliilates the whole argument which ifl based on this family likeness; because it isaimpiy

ridiculous to say that the finmcrs of the Consti- tution would put one proliibition upon executive powers in this ninth section, but they would not put two in it. All these arj^uments, based like this one is, on associations of things similar, are de- stroyed by the establishment of one clear and ad- mitted exception.

In this ninth section we find one clear and ex- press prohibition upon the executive power, which prohibits money from being drawn from the Treasury except upon appropriations made by law. Who draws money from the Treasury to pay national liabilities? The President and his ministers, of course. Wiio then are prohibitt.'d from drawing except upon appropriations? The Department which is charged with the duty of drawing, of course. Can anything be more self- evident?

But to get rid of this, the gentleman from Ohio [Mr. Pendleton] reads this clause in a twist. He makes it read: " Congress shall have no power to permit money to be drawn from the Treasury ex- cept in consequence of appropriations," which is equivalent to sayingthat Congress shall not permit money to be withdrawn unless it permits it; Con- gress shall not appropriate money unless it shall appropriate it. This reading, I submit, does not bring tiiis constitutional clause up to the dignity of good nonsense. This clause has been repeatedly held to be just what it is, to wit, a prohibition upon all the custodians of the public money, whereby they are prohibited from using, or, by contract or otherwise, appropriating the public money, and whereby all liens on such moneys are excluded, and can be created by no executive act. The pro- hibition is therefore decided to be upon the Execu- tive. (See 3 Opinions, 13; United States vs. Bar- ney; 3 Hall L. 1., 130, &c.)

The argument, therefore, fails which assumes that there are in the ninth section no prohibitions on the executive powers, just because there are such prohibitions.

The other assumption of fact upon which this argument is based is, that ihis hahcaa corpus clause has no other quality which makes it like the fam- ily in the ninth section, and renders it proper to be placed there. It has such similar quality, and one whicli is common to every one of the clauses in this section — and it is the only quality which is common to them all — which is that it, like every one of its fellows, is a negation or prohibition of power. It is this common property of these clauses which brought them together in one section, and not the fact that they were all negations upon the powers of Congress, as distinguished from the negations u|ion powers of the otherdepartmentsof the Government. To say that the ninth section contains no prohibitions upon the powers of any department of the Government except Congress, is to say that the President is not prohibited from granting — as the English Crown may — titles of nobility, because there is no prohiliition upon granti.ng such titles except in this clau.se. It is en- tirely evident that this section contains a collec- tion of prohii)itions of power which apply to all the departments of the Government — President, Congress, and all.

The same answer is to be made to the argu-

ment which assumes that the first article, in which the habeas corpus clause is found, is devoted ex- clusively to the.legislaiive department of the Gov- ernment. The fact is notas the argument assumes it is, and the argument fails whin the fact does upon which it is based. The tenth section of this first article is devoted to prohibitions upon the powers of the States, and the first clause of that section contains ten distinct and ex[>ress prohibi- tions upon the powers of the Slates, and has no earthly relation to the powers of Congress. Is that not a most strange argument which admits that the framers of the Constitution have put ten prohibitions of power into the first article of the Constitution which do not touch the powers of Congress, but argues that it is absurd to suppose they would put eleven such prohibitions in it?

But if any further fact be required to show the total worthlessness of the arguiv)ent based u])on the position of this clause in the Constitution, that Tact is to be found in the history of the adoption of the clause. Where was this clause placed when it was adopted by the convention? The answer to that question, of course, shows the only sense of the convention, which is to be learned from the connections they gave the clause. Now, the fact is that the habeas corpus clause was, by the con- vention, made as being a part of and limitation upon thejudiciary department of the Government. Its history in the convention may be condensed thus:

On the 29th of May, 1787, Charles Pinckney (Elliot's Debates, p. 148) reported a " Plan of a Federal Constitution," in ,lhe sixth article of which, concerning the legislature, the hnbeascorpua appeared in the convention for the first time in these words:

'•Tin; Legislaliirft of the United States shall pas.<? no law on the siitycct of religion nor touching or al)ridi;ing the lil>- erty of the press, nor shall the privilegeof the wrilof Aaieoi corpus ever be suspended, except in ease of rebellion or invasion."

This reported " plan" of Mr. Pinckney never came up again in the convention.

On the 20ih of August (Elliot's Debates, p. 249) Mr. Pinckney moved several propositions to be refern.'d to the committee of detail, one of which propositions was in these words:

"The privileges and benefits of the wr'n oC habeas corpus shall be enjoyed in this Governinfnt in the most expeditious and ample manner, and shall not be suspended by the Legis- lature except upon the most urgent and pressing occasions, and for a limited time, not exceeding months."

This was the second time a /ta6pascoJ7JMS clause was before the convention. On the 28th of Au- gust (Elliot's Debates, p. 270) the convention was engaged in receiving and considering independent or new provisions, and also amendments to the Constitution, which were then before the conven- tion from the committee upon detail, and the ha- beas corpus clause was brought up the third and last time, when Gouverneur Morris moved the clause which was adopted and which is now a part of the Constitution; and he moved it ex- pressly, and it was by the convention adopted, as an amendment to, and a part of the fourth section of the eleventh articleof the Constitution which had on the 6th of August been reported by the commit- tee of five. And«his fourth section of the eleventh

article related to the judicial department of the Government, and the fourth section to the place of criminal trials, (Elliot's Debates, p. 229.) This was the last act of the convention upon this clause, and this made it part of the judiciary article of the Constitution.

The present position of this clause was given to it by a committee "on style and arrangement," (Elliot's Debates, p. 295, )andwhosedutiesdid not touch the sense or substance of the instrument. They were to revise the style of and arrange the articles which were agreed to by the House, and no consideration was ever given by the convention to the arrangement of articles and sections which the committee on style reported, so that the only ac- tion of the convention on the posi/ioM of this clause in the Constitution was the significant action of taking it out of the legislative article, vvhere Mr. Pinckney had moved it, and putting it into the judiciary article, where Mr. Morris expressly^ moved it. And the convention, without consid- ering or debating the matter at all, simply acqui- esced in letting the report on style stand, which report grouped it with a family of negations, which apply to all the departments of the Government. This historical recital, I submit to every fair-mind- ed man, totally refutes all inferences in favor of the legislative control over this writ v/hich is sought to be derived from the position of this clause in the Constitution.

But there is another view of this history which is exceedingly significant of the sense of this clause, and which is unanswerable as an argument against the legislative control of this writ. Mr. Pinckney's last proposition, of the 20lh of Au- gust, proposed to do just what the English Par- liament can now do, as will be noticed hereafter, to wit, give to the Legislature the full power to suspend the benefits of the writ whenever Con- gress should deem the necessity " most urgent and pressing," although there was no rebellion or invasion or.warin the land. This legislative dis- cretion was stricken out by Mr. Morris's amend- ment. The convention did its own legislation upon this matter, so vital to popular liberty, made the conditions of public danger which should au- thorize the temporary denial of the personal priv- ileges of the writ known and fixed quantities in the Constitution, and forever withdrew them from the control of Congress. And then, in adopting the prohibition , the convention made it part of the judiciary article. The significance of this action may be thus fairly expressed: we will not let Con- gress determine when the occasion for suspending this high privilege is most" urgent and pressing," as Mr. Pinckney proposes. We will not let any urgency, short of that occasioned by rebellion or invasion, suspend the privilege. We will strike out Mr. Pinckney's plan of letting Congress judge of this urgent and pressing occasion, and we will legislate and define what facts shall constitute this general state of public danger; and we will put into tile Constitution a legislative and unalterable definition of that " public danger;" and having so legislated, we will attach this prohibition to the article regulating the judicial department of the Government which controls and acts on this "privilege," and will take it out of the legis-

lative article, where Mr. Pinckney proposes to

place it

I shall have occasion again to refer to the eflfect of this defining by the Constitution of the general degree of public danger in which the privilege majj be suspended, and only allude to it here as showing that the proposition to give Congress a general discretionary control over the writ, was actually presented to the convention, was con- sidered, was rejected, and a clause inserted in its place by which the Constitution legislates upon and makes definite the general degree of public danger which alone shall authorize a temporary denial of this " privilege" to dangerous persons; and that having so defined and legislated, they took the clause out of the legislative and placed it in the judicial article of the Constitution.

Now, how irresistible is the answer furnished by the simple history of this clause to the argu- ment which is based upon its being found in the first article of the Constitution!

But to make the argument, based on the position of this clause, appear in still stronger light of un- reliability, let me glance at a few facts as to the arrangement and position of clauses of the Con- stitution. You not only find, what has been already noticed, a large number of clauses relating to the powers of the States and not at all of Congress, in the first article, which in the main relates to the legislature, but you find in the judiciary article a new power given to Congress,to-wit, to define and punish treason; also a new prohibition upon the powers of all the departments, to-wit, that pro- hibiting forfeitures and corruption of blood. You find a new power given to Congress in the third section of the fourth article: to admit new Slates, Also one giving power to make rules for the Ter- ritories. Also" in the fifth article a new power is given to Congress to propose amendments to the" Constitution. Also in the sixth article is a new prohibition on the power of Congress and all other departments, excluding the adoption of re- ligious tests. Also in the third (judiciary) article a new power is given to Congress to create courts inferior to the Supreme Court. Also in the first (legislative) article is the new and important power of the President to veto the laws of Congress.

This history and these obvious facts show the singular force of a remark of one of the first liv- ing lawyers of the age, to whose learned opinions I am much indebted for parts of this argument, that " no instrument permits the interpretation of its clauses to be affected by position less than the Constitution of the United States."

I now proceed, Mr. Chairman, to consider the argument which is derived from the analogies of the English constitution. This argument may be thus stated: this writ, and many other features of our Constitution, are derived from England. The Parliament, and not the king, can suspend the writ in England. Our Constitution, which was aiming at making a freer Government, and one of less despotic power over life and liberty than the English, would not give to a President powers to suspend a law which even the English would not intrust to any power but their own representatives, and especially not an aulhoriyr over the liberties of the citizen, which, by violent

8

straggles and civil wars, had been wrested from tlu' executive in England.

I make a preliminary remark touching the re- liability of all arguments by analogy. They are proverbially unreliable, and are the lowe.st grade of all methods of argumentation. The reasoji is, that if one material fact in one of the two things compared is dilferent from its fellow fact in the ■ oth«r or parallel subject of comparison, then the whole argument falls; and this is nearly always iw some degree the case. To illustrate: suppose a statesman iji Russia were trying to )irove from the history of the New York and Erie canal tliat a canal in north Russia would be a great and profitable work. He would show that the waters for its supply were as abundant, that the nature of the country would admitof as easy a construc- tion, that the commodities lor transportation were as great, that the skill and enterprise for its nav- igation were equal, and that, in short, in every particular the canal in north Russia would, in fa- cilities for usefulness, be equal to the Erie canal; but he omitted to notice but one particular, but that one was that the water in the Russian canal would be eternal ice. Now, what kind of an argu- ment by analogy would that be, in the case sup- K>sed, which would decide to build the canal in ussia because it paid in New York.'

Now, it is a singular fact that in the argument from the English constitution, whicii we now consider, almost everything which is assumed as postulates, and upon which tJie whole analogy ia based, is the veriest assumption, and totally mntrue; and besides, the argument, as conducted, leaves wholly out of view conditions and vital parts of the two things compared, which, left out, totally reverse theircharacters. Let me state them.

The argument assumes that the position, which admits tiie President may suspend, for the public safety, in time of rebellion or invasion, the priv- ilege of the writ, is liable to the following ab- surdities, namely:

1. Holding that the President may repeal or suspend a law of the land.

2. That to give this power to suspend the privilege to the President, as it is limited by our Constitution, would be giving him power which England does not give to the king.

3. That there is no legislative authorization •nd definition of the right to suspend, as claimed for the Pcesident, but which is required in Eng- hnd.

This argument, moreowjr, against the Pres- ident's power, involves the following unwarranted and false assumptions of fact:

1. That tlie President's general powers and perogativesare such as to make it as unsafe to in- trust to him this power to suspend, as it would be to intrust it to the King of England.

2. That the power of our Government over this writ is as great under our Constitution as under the English is that of Parliament.

3. That our Constitution provides no check upon the abuse of the powers of the President which are unknown to the English constitution.

Every one of these propositions is vital to this

Salogioal argument, but every one of them is e merest. assumption and wholly false.

If it is true that the President may suspend the privilege of the writ during rebellion or invasion, for the public safety, still, this gives him no power to repeal the law itself, or to modify it so as to dejirive the people generally of the benefits of the law. It involves nothing more than suspending temporarily the " privilege" by which a man found to be dangerous to public safety may be dis- charged on bail or otherwise. It leaves the law in full force over the whole land, and does nothing more than authorize the President to arrest and hold such one or more men as public safcty for- bids to be at large during a rebellion or invasion.

Mr. Chairman, this precise power of tempora- rily withholding from dangerous men the right to bo at large in the society which they endanger, is precisely what, by the uniform legislative prac- tice in England, is intrusted to the king and his privy council. The Parliament does do just what our constitutional convention, by the Constitu- tion, did, to wit, leave it to the Executive to find out, arrest, and detain temporarily in prison dan- gerous men. The luibeas cojy; iw act has been at various times suspended with respect to the power of imprisonment vested in the Crown upon occa- sions of public alarm. (2Chitty's Statutes, 56, note E.) The act of 4tli March, 1817, being 57 George III, is an example, by which the king and his privy council, in time of peace, were per- mitted to arrest and hold free of bail such men as they might suspect to be engaged in treasonable practices. The acts of Parliament, so Ifar as re- lates to the authorization of the executive to select and detain dangerous men, do give the English executive just what our Constitution gives to ours, the difference between the two being that Parlia- ment confers the power whenever it chooses- and as long as it chooses, whereas our Constitution confers the power jwid makes it perpetual, but oaly confers it in two conditions of the country. Ours defines in advance the condition of the country authorizing the suspension; the Englisli only when it comes.

But let us look for a moment at the character and foundations of this argument drawn from the assumed analogies between oux own, and the Eng- lish constitution.

The king creates the upper House of Parlia- ment, including lords spiritual and temporal. The President does not.

The king has the sole power of convoking the legislature. The President has not.

The king can dissolve or prorogue Parliament at pleasure. The President cannot.

The king has an absolute veto ou acts of Par- liament. The President has not.

The king's presence at the opening of eadi Par- liament is necessary to give it life aa-a legislature. The President's is not.

The king regulates all commercial intercourse, coins money, regulates the standards of weights and measures. The President does not.

The king appoints and removes at pleasure all judicial officers of the Government. The Presi- dent cannot.

The king is the head of the Church, appoints twenty-six bishops and archbishops, who are lords spiritual, convokes their councils, dissolves

9

them, and annula their canons. The President cannot.

The ifirig is tlie depositary of the collective ma- jesty of the realm as to all foreign relations. He forms alliances, makes treaties, declares war, makes peace, raises and equips armies, fleets, and navies, builds forts, sends and receives embassa- dors. The President does none of these, or none which are not subject to the control of the Senate, or of Congress.

The king creates all military commands free from any review by other departments of the Gov- ernment. The President does not.

The king's tenure of office does not come from the people. The President's does.

The king's otHce is for life. The President's for four years.

The king can do no wrong, and cannot be im- peached. The President can be impeached, and can do wrong.

Such a mere glaiice at the want of analogy be- tween the executives of tlie two Governments shows how utterly fallacious every argument by analogy becomes which assumes that it would be unsafe to tiie people to intrust this carefully de- fined power and care of the public safety to the President, because it is unsafe to intrust the un- limited power of Parliament to the king. The President is made by the people; holds his power, at longest, but tor four years; may be impeached by the Legislature of the people for its abuse; creates no part of the Legislature; can give, with- out the Senate's assent, no judicial or other office; makes no wars nor alliances nor treaties nor armies; and in every one of these respects is totally unlike the king, and yet it is unsafe to intrust to him the power in question, because it is unsafe to intrust it to the king holding such absolute, vast, irresponsible, and hereditary pre- rogatives! (See 2Story's Constitution, sec. 1427.)

But, sir, it was not necessary to attempt to show the utter fallacy of this analogical argument, just because the doc trine which ad mils the power to sus- pend this privilege to be in the President does not, as is asserted, give the President powers greater than are given by the legislative practice under the constitution of England to the king. But, on the other hand, with this power in the President, the liberties of the people are far more jealously

tuarded than are the liberties of the people of uigland under the English constitution. The radical difference between the two consti- tutions is that under the English constitution the Legislature can, at its pleasure, in times of pro- found peace, as well as in war, wholly suspend or repeal " the privilege" of the writ, or the writ it- self. And this power of Parliament not only may be, but, whenever exercised, (as in 19 George II, chap. 1; 34 George ill, chap. 50; 38 George III, chap. 36; 41 George III, chap. 26; 57 George III, chap. 55>) has been exercised to confer upon the king the power of arresting and detaining without bail dangerous or suspected men; whereas under our Constitution no such discretion or power is lodged witli any or all the departments of the Government. For neither the President nor Con- gress can ever repeal or suspend, at any time, either of peace or war, the law itself; cannot even sus-

pend its " privileges" or benefits to any citizen in times of peace; cannot suspend "the privilege" to any, even the worst citizen, in time of any war except the two of" invasion "or" rebellion," and, even in these times can only select out of the great body of society such ones for arrest and detentiort as endanger " the public safety." Can an argu- ment be conceived more baldly and palpably fal- lacious than one which totally falsifies the facts presented by this contrast of the English and American constitutions.' So supremely solicitous has our Constitution been of the liberty of the citizens that it has wrested from the very sover- eignty of the nation — as well from Congress and the President as from the judiciary — all power ever, in any case, to repeal or suspend the law giving the writ. It has also deprived the supreme sovereignty of all power to deprive any man, how- ever dangerous, of the " privilege" of the writ ex- cept in two specified cases and conditions; and even in these two conditions it has deprived that sovereignty of all power over the " privilege of the writ," except as against the men whose liberty endangers " the public safety," and even against these, and in these carefully defined conditions of invasion and rebellion, it has only permitted the " suspension," or temporary b.anging up of the privilege, and not its total abolition.

I ask if it be possible to conceive of "any form of human language or ingenuity which would more effectively guard this " privilege," without vir- tually depriving the Government of all power to detain men engaged in the destruction of the Gov- ernment? And yet, sir, in the face of the facts of this contrast — a contrast furnisiicd by the mere reading of the English and American constitu- tions— we are told that the intrusting to the Pres- ident, for the public safety, the detention of dan- gerous men in time of rebellion or invasion, is giving him powers over personal liberty which it is deemed unsafe to yield to an English king !

Sir, the only other argument against the doc- trine ascribing this power to suspend the " priv- il'ege" of this writ to the President, is the one founded upon authority of Judges Marshall and Story. The eminence of these authorities iri all matters upon which they have judicially passed, but which they have never done at all in the mat- ter now under consideration, as to whether it is the President or Congress to which tliis " sus- pending" is, by the Constitution, intrusted, makes me unwilling to submit to this House or to the country a single remark of my own upon what they have said touching thisquestion. I therefore avail myself of the just and forcible remarks upon this point of a great lawyer, of whom it is not too much to say that he is not inferior in legal learn- ing, in ability, or the wisdon coming from long experience and observation in the working of our Government, to either of those truly eminent American judges. I quote from Horace Binney, of Philadelphia. As to the dicta of Judge Marshall and the commentaries of Judge Story, he says:

" 15ut the language of Cliiflf Justice Marshall, wliatevor lie its meaning, war* not used in a case which brought up th(! question. The case of ex parte Boluian, in 4 Cranch, could not bring up the question whether the President or Congrees had the power of suspending the privilege of the writ ill cases of rebellion or ijivasion. There was no re-

10

bcllion nor Invasion at the time, and no suspension of the privilege liy citlicT t'onuress or the I'rcsident.

'•Tlie (|ueslj«n then before the court, the first question in er parte Uoltnnn, wiis whether the Supreme Court, haviu); no original juriiidietlun of the case, could issue a writ of habeas corptu to hriHg U|) the body of Dolman, and the rec- ord of his coinniitinent l>y tlie circuit court for tlic District of Columbia. The court was itomewliat divided upon the point, and the writ was issued, two judges out of the five dissenting." ••*»»*•*

" The power to issue the writ was tlie (|U(!stion ; and as Ihe Legislature had given this power to the court, it was apparently reasonahli- to say that the Legislature only could suspenil that power. The whole language does, how- ever, say furtlier, tliat if the public safety should require Ihe suspension of the powers vi-sted in the courts, adverting, perhaps, to the language of ilie habeas corpus clause in the Constitution, it was for the Legislature to say so.

" But there was nothing before tlie Chief Justice to raise the distinction between (^>llgrcss and the President ; nor between the privilege of the writ as descriptive of a per- sonal right, and the writ itself as authorized by law; nor between the operation of tlie Constitution itself, and the operation of a law of Congress. Certainly Chief Justice Marshall would not have said tiiat if the Constitution, either expressly or impliedly, had given to the President the power to suspend the privilege, his act would not be as ef- fectual upon till! courts, and upon the law of Congress which pave power to the courts to issue the writ, as any act of Congress would be. The proper question would then liave been between the Constitution and Congress, and not be- tween an act of Congress and the court. It was, however, altogether o^i7er, wlialever was the Chief Justice's mean- ing ; and was no authoriiy, though it is all that Cliief Jus- tice Taney cit<!s as of judicial decision.

•'Judge Story's reniarlis, which arc also referred to in Merryman's ease, are of even less weight; not from per- sonal considerations, hut as tliey are tliose of a coniineiit- ator, and not of a judge in his place. Tlie point of them, however, is easily taken away.

" In cominenlliig vi^ry briefly upon abuses of personal liberty in Knglaiid, including abuses by Parliament, and of the restraint placed iipnii them by the clause in the Consti- tution of the United t^tates, Judge Story remarks : ' Hith- erto no suspension of the writ has been authorized by Con- gress since the establishmentof the Constitution. It would seem, as the |iowcr is given to Congress (sic) to susjiend tlie writ of habeas corpus in case of rebellion or invasion, tliat the riglil to judge wliether the exigency h:id arisen, must exclusively belong to that body.' As this is printed in Judge Story's work, tlie last clause, which begins ditTi- dently enough, proceeds at once to dogoinetliitig more llian to beg the qu<^stion. It demands or extorts it. The very question is, whetlicr the power is given to Congress. Cer- tainly no power is given in terms to anybody to suspend tiie writ. There is more in the same sentence, on wliich it is not necessary to remark."

1 now proceed to notice some considerations which sliow that this power to " suspend" is by the Constitution intrusted to the President. As the basis of the alfirinative argunient hivs neces- sarily been brought inio notice in considering the arguments agninst the President's power, it will not require so much time to state these consider- ations.

It already appears, by a mere reading of the Constitution, that no power exists in Congress or elsewhere, ever, cither in peace or war, to suspend or repeal the law or the writ of /i(if»eas corpus; that all that can ever be done, whether done by Con- gress or the Piesident, in our Government, is to select out of the mas.>5 of society such ones of the citizens a.s shall he discovered in fact to be engaged in acts which so etidanj^er the public safetyas to demand that they should be held for a time de- prived of the " privilege" of being bailed out by those who arc engaged with them in the overthrow of the Government. We have also seen that this can never be done, even against the worst men,

except at two specified periods or conditions of society; and these two conditions of society, re- bellion or invasion, are conditions of fact and not of law, and their existence or non-existence is wholly out of the reach of any legislation to affect. Congress cannot change the fact of the existence or non-existence of a rebellion by enacting that there is or is not one in the land. To this must now be added the fact that, at this precise junc- ture, namely, in times of insurrection and inva- sion, the Constitution providi.-s for Congress call- ing out the militia to execute the laws. Then in article two, section three, it provides that the President shall take care that these laws (which the militia are called out to execute, and all others) are faithfully executed; and then it makes the Pres- ident (article three, section two) the commander of the militia called out at this juncture of insur- rection or invasion.

Putting now together the whole of these con- stitutional provisions, and reading them in their proper relations to each other, and they are thus: " No power in this Govermnetit .shall ever repeal or suspend, as against the body of the people, the writ of law of habeas corpus. All that shall ever be permitted is, that ' the privilege' of being set at large shall temporarily be denied to such one or more of the members of society as by their acts are endangering the public safety; but I will not permit even this, except u|ion the happening of one or other of two facts, to wit, rebellion or invasion; and whether these facts have happened, I make the President exclusive judge, as is settled by legislation and decision. (Sec 7 Howard, 1.) Just when these facts have happened I authorize the militia to be called out for the purpose of en- forcing the laws, which duty of enforcing the laws I give to the President; and to enable him so to do, I make him the Commander-in-Chief of this militia."

Now, I beg to know who, that had not pre- judged the case, would not say instantly, from the simple reading of these cognate parts of the Constitution thus brought together, that it was the President only who had the power to arrest and detain these dangerous men.' He would be com- pelled so to conclude, first, because the act of find- ing out and " suspending" is strictly an Execu- tive, and not a legislative one. It does not at all suspend a law, but only hunts out, arrests, and holds a dangerous man. It is an act done only to enforce the laws, and that duty to see that they are enforced is expressly and exclusively confid'ed to the President. It is an act which can never be done except in the twoconjunciions, and these are the very two in which the militia are called out, and the President is given the exclusive command of them. The fact is that this presents one of those cases in which the siuiple statement of the case appears like demonstrntion.

Why, sir, what tnan would sny that any power, either that of Congress, the President, or both, can ever, in peace or war, repeal or suspend, as to all the people, the right to this writ, or can suspend the existence of the remedy to the whole country.' No one dare so affirm. Then, sir, all that can be done is to hunt out of cellars, dens, caves, mount- ains, alleys, and military camps such individuals

11

as, in rebellion or invasion, endanger the public safety. What man that is not mad will say that Congress can ever do this hunting up of danger- ous men, which hunting must thus penetrate the plots of conspirators, e^ntcr their midnight con- claves, comprehend and keep upon the track of shifting and infinitely complex military schemes, movcnients, and combinations? And yet this is all that the Constitution permits anybody to do. It permits the " privilege" to be taken from dan- gerous men, not the law to be repealed as to the people at large. Whether the pubhc safety do demand that any given man ought to be arrested and deprived of bail depends upon what he is doing, and the character, state, and progress of his designs affecting the public safety. Will you talk, Mr. Chairman, of Congress doing the pohce duty of watching and delecting and determining upon the propriety of arresting any one conspira- tor.' The proposition is so totally absurd and at ■war with, not common sense only, but with the principles of the Constitution, which made the President exclusive commander of the Army, that its absurdity renders it incapable of refutation by argument. But to avoid this absurdity, it is insisted that what Congress must do is, not to determine what individuals endanger the public safety, but, leaving that to the President, it is the office of Congress to determine, by law, whether the general condition of the country requires the suspension. But so far as this is not already answered, I propose now to consider it.

My colleague, [Mr. Pendleton,] in his speech upon the subject, says, after quoting this habeas corpus clause:

" This is certainly a provision, as the Prosident well re- marks, that, in case o(" rebellion or invasion, when the pub- lic safety may require it, the privilege of the writ may be suspended."

It is entirely evident that in this the President and my colleague are right, and that this clause is equivalent to a command that when in rebellion or invasion the public safely requires it, this priv- ilege shall be suspended by somebody. It is a legislative definition, and an affirmative grant of power to somebody. That i.s, the Constitution Itself has legislated upon and has definitely ascer- certained, defined, and fixed the only two condi- tions of the country in which any one can be de- nied this privilege. It has proliibiied its being denied in any other state of the country than these two defined; and has enjoined it to be denied in these two, not as to the body of the people at large, for that cannot be done at any time,butasto such ones as tlu; public safety requires should be de- prived of it. It thus is made evident that the state, degree, or standard of the general danger of society which alone authorizi'S this " privi- leo-e" to be denied to any individnal, is as unalter- bly fixed and defined by the legislation of the Con- stitution as it is possible in its nature to be. It is just because this general degree of danger is thus 'defined and fixed by the Constitution, that the power of Conirrcss over the matter of what shall be the general slate of public danger which shall authorize this suspension of the privilege to indi- viduals is excluded totally. How perfrctly evi- dent this is. Could Congress say that the public

danger which shall permit this suspension shall be rebellion "and" invasion, instead of rebellion "or"invasion. No one will so assert. Therefore, so far as the general safety of the country is con- cerned in authorizing this suspension, a rebellion or an invasion existing furnishes the only stand- ard of public danger which any jiower in the Government can establish relating to the generaZ state of the Republic.

The only condition which is left, therefore, un- fixed by the Constitution, and as to which any power in the Government has any discretion or choice to exert, is that one as to who shall be de- nied the " privilege" of discharge on bail. And the rule fixed by the Constitution for controlling that, the only discretion and choice left by the Constitution to be exercised, is that the suspen- sion must be of the privilege to those who endan- ger the public safely. As the genera! danger IS fixed by the Constitution to be in " rebellion" or " in- vasion," Congress cannot legislate as to these. These are conditions of fact and not of law, and that fact that there is or is not a rebellion in the. land cannot be changed by an act of Congress en- acting that there is or is not one. If, therefore, there is anything for Congress to do, it is not to enact that although there is a rebellion yet I en- act that no one, however much he may endanger the public safely, shall be denied bail; for that, we have seen, the Constitution prohibits Congress from doing. All there is left for Congress to do is to declare whether there is any man who now endangers the public safety, and to find him out and to authorize, not the suspension of the gen- eral law giving the writ, for that cannot be done, but the suspension of the " privilege" as to that dano-erous man. This analysis of plots and con- spiracies, this scrutiny of dens, caves, mountains, and militarycombinationsand camps, which must be constantly and minutely resorted loin order to decide who it is that must, for the public safety, be denied this privilege. Congress must practice and perform, if it be Congress which miistdecide this the only matterof discretion and choice which is in the Constitution. To say that Congress could, if always in session, when these times of danger, requir'inir instant action, occur, discharge ihis^mere policermilitary, or Executive function ofdetecling, arresting, and holding dangerous con- spirators, is supremely absurd. But this is all there is for Congress to do. Congress cannot en- act that although there is rebellion no one, how- ever dangerous, shall be arrested and held when the public safety requires; because the Constitu- tion says he shall be held who is so dangerous. Then if Congress legislate at all there are only two acts it can pass, one ordering particular men to be arrested and held; the other ordering that during the rebellion all who endanger the public safety be so arrested and held. The former Con- gress cannot do, unless Congress turn constable to find out who are dangerous; the latter it need not do, because the Conslitnlion itself has done it long before. For Congress to meet and do this last, would be precisely the same, and as sense- less, as for Congress to enact that the President be authorized to'v«,to an act of Congress and to jrive his reasons therefor.

12

It will bo soon, from wiiat has I)r-pn now said, Mr. Clinirman, liow<^n>iu the fiill.icy is'which attein[)t3 to reason as to the powers of Coiiijrcss over this writ from the nntil()<i;i<s of the Eiiglisii constitu- tion. Tlir fart is, our Constitution has tloiie what Parliament does do. It lias enacted and defined when the country is in the condition to authorize conspirators to be deprived of the " privilege" of bail. Our constitutional convention, under our system, did the le<;;islation which, in England, Parliament (which is both a constitutional con- veniion and a legislature) can and docs do; and in both countries these supreme legislatures do all that the nature of the case admits of being done, to wit, authorizes the executives, in times of de- fini'd and specified general danger to the Slate, to aiTi.'St and liold those who endanger that State. The only ditrerence in the two couiitrii'S is that in ours the supreme legislation of the Constitution perm its this denial of the |)rivilegeoi)ly in two kinds of war, and never in peace, and this is unalterable and irrepcalable by Congress; whereas, in Eng- lanil, Parliament can, at any time of peace or war, authorize the executive to do the same. And this is English practice.

IVIr. Chairman, the relations of the departments of this Ciovernment to each other, furnish an- other very conclusive consideration in support of what I argue. That within their spheres the three departments of our Government, executive, le- gislative, and Judicial, are coordinate and inde- pendent, and that " the powers of one ought not to beextM-cised by either of the others, "(2 Story's Constitution, sec. 1416,) is simply a truism of our governmental theory. To require that Con- gress or the judges should assent before the Pres- ident shall " see tluvt the laws are executed," or to compel him to adojit the plans of Congress for the exercise and execution of his constitutional military powers, is not merely to deprive this Gov- ernment entirely of an Executive and to substitute the old " committee of Congress" of the Confed- eration, but it is to force upon the Constitution a legislative usurpation of executive functions a hun- dred fold worse than that proposed and voted down in the constitutional convention. (Federalist, 70, &c.) The President alone commands the Army and militia in enforcing the laws and suppressing rebellion. He must swear that to the best of his ability he will do this. His command of these forces can ''* not be exercised by either of the Other" departments. (Story.)

Now, all this being the plainest and the univer- sally admiiti'd law of the Constitution, I inquire whether it shall be permitted that Congress shall say to the President, you shall not arrest, without my leave, a single conspirator who is engaged secretly in planning and heading the rebellion, although you may deem it absolutely essential to the fulfillment of your constitutional oath, and to the overthrow of the rebellion.' You shall not arrest this conspirator without the leave of Con- gress, although you know that his arrest is ne- cessary to deliver the capital of the Government and theGovernmentitself from destruction, which Merrymnn and his confederates have planned, and on Uie memorable l!)ih of April began to exe- cute in the blood with which tl:<v have dfii'-ticd

the streets of Baltimore. No, sir, you must let the capital and the Government fall, and await a meeting of Congress, and at its feel beg leave to obey your solemn oath to protict and defend the Constitution. And if you do, by your Army, of which you alone are coiTwnander, deem it neces- sary to arrest one of these arch-conspirators and traitors, then some Chief Justice of the United Stales, although one of the conspirators, shall have the right to discharge his fellow consi>irator, and replace him at the head of the rebellion, the Chief Justice, as he discharges his fellow traitor exclaiming," in no emergency shall you arrest any citizen except in aid of judicial process," and that although the only power who has jurisdiction to issue the process is at the head of the rebellion! Well might Justice Taney exclaim, as he did, that such law reduces our Constitution to " a guaran- tee of anarchy." If such be the dependence of the E.xecutive upon the other departments of the Government, then verily has the President not only ceased to be a coordinate branch of liie Government, but he is become the mere toy and plaything of anarchy and rebellion.

But, sir, the power and duty of the Executive as a civil magistrate to employ the militia and Army in executing the laws indejiendently of and with- out judicial process has been uniformly acknowl- edged by Congress ever since we had a Govern- ment. This is expressly done in the act of 1795, which empowers him, whenever he thinks best, to call out the militia to suppress insurrection, and makes him the exclusive judge as to the necessi- ties of resorting to military force, (7 Howard, 1.) This is also done in the act of March 3, 1807, section one hundred and seventy-one, which au- thorizes tJie President to defend against intruders the public lands by the use of the Army and with- out any judicial process. It is also done in the act of 30th June, 1834, by which persons and prop- erty in the Indian country may be seized and re- moved by the Army without any process af law, under the direction and regulations of the Presi- dent of the United Suites. All this legislation, as old and well-established as the Government itself, is based u]ion the assumption that the Executive may without judicial process emplcry the Army in executing the laws without violating the Consti- tution; for if this employment of the Army by the President thus to enforce the laws be against the Constitution, then manifestly Congress cannot authorize any such unconstitutional einployment of the military forces of the Government; and all this long and uniform and unquestioned legisla- tion which began with tlie very formu^on of the Constitution, and continues to this day,.is uncon- stitutional and void.

Mr. Chairman, this legislative interpretation of the Constitution furni.shes one of the most con- clusive refutations of this monstrous assertion of the Chief Justice that the military can never, " in any emergency," be employed by the President except Lo aid in the execution of some process which has been issued by the courts. It is at war with the whole current of American legisla- tion.

I now consider the affirmative argument which is bnj<i«l upon jod'ciiil iintboiiiy . That lln' pre-

IS

cise principle, and also the full force of the author- ity I shall cite may be seen and felt, it is proper here to state the legal position those assume who deny the power of the President to arrest and hold these dangerous men, in time of rebellion. John IVIerryman, of Baltimore, was,* by order of the military authority of the United States, ar- rested and confined in Fort McHenry, upon the 25th of May, 18G1. This was after one third of the States of this Union had declared their with- drawal from that Union, and their adhesion to a foreign and hostile government; after all the ju- dicial powers of the Federal Government in every one of these States was completely stricken down, and not only powerless for the defense of the laws aodOovernmentof the United States within these revolted States, but the officers of these Federal courts, the judges, marshals, and juries, were leading or aiding in the overthrow of the Govern- ment. It was after the capital of the nation was invested and beleaguered by vastarmies marched upon the capital with tlie declared purpose of totally overthrowing the Government of the Uni- ted States, of taking possession of tlie seat of its power, destroying all the constitutional officers of the Government, seizing upon and appropriating to its rebel government all the archives, insignia, and instruments of the sovereignty of the United States. It was after Merryman and his co-con- spirators had — as there is the highest reason to believe — destroyed the bridges and roads by which alone the armies of the United States could, and were seeking to, reach the capital of the nation for its defense against these armies so menacing the very existence of the Government. It was after these conspirators in Baltimore had secretly prepared the arms and powerful combinations of rebel cons]>irators to carry their State over to the rebellion; after their Legislature had planned the treason by which this conspiracy was to be sanc- tified by the forms of law, declaring the adhesion of the State to the rebellion; and after the blood of the patriot, who was rushing to his country's deliverance, had, on the ]9th of April, A. D. 1861, rendered the streets of Baltimore holy as the soil of Lexington, on whicli was sprinkled the first blood of tlie Revolution. And it was just when every loyal heart in our laud was crushing in the agonies of grief and fear for the utter overthrow of our institutions, institutions conseciated to freedom and to God, not by the blood of the Rev- olution and the jirayers and benedictions and memories of revolutionary ancestors alone, but I by the blessings of the friends of human hopes and human liberty in every land where God has ; children. Just then it was that Judge Taney ut- tered the sentiments — in a diatribe delivered in defense of one of these arch-conspirators, and in denunciation- of the President's struggles to save \ the Government — whicli I now quote. To appre- ciate what I quote, it must not be forgotten that when he uttered it the judicial authorities of the | Federal Government were then not only over- j tlirown in the States where the rebellion was, but the officers of that judiciary were engaged in the rebellion.

First, I quote a proposition he cites from the ';

sixth article of the Constitution, which declares that —

" In all criminal prosecutions the necused shall enjoy the right to a speedy anil piililic trial by an impartial jury of the State and district wlieroin the i-rime shall have heen com- mitted, whicli district shall liave been previously ascer- tained by law."

I next quote what is on the following page of that opinion in ex parte Merryman as follows:

" I can see no ground wlwvtovor for supposing tliat tha President, in any enicr^iuicy or in anv state ol things, can autliorize the suspension of the i)riviiegt' ofthewritof lia- lieas corpus, or arrest a citizen, Accept in aid of tlie judicial power."

He then goes on to show that the Government of the United States has not the power of self- preservation, and to prove that it has not, he says:

" Nor can any argument be drawn from the nature of sov- ereignty or the necessities of government for solf-defense in times of tumult and danger. The Governmejit of th« United States is one of delegated and limited powers."

This meaning, if it means anything, that the powers oftlie Government are so limited that it has not the power of self-defense. He also says the President "is not empowered to arrest anyone charged with an offense against the United States and whom he may, from the evidence before him, believe to be guilty; nor can he authorize any offi- cer, civil or military, to exercise this power." This he declares the President cannot do "in any emergency" or "in any state of things." These propositions have the merit of being plain and unmistakable. The President can, in no rebellion or"danger"or "tumult," "in no emergency""or state of things "ever arrest, or "authorize any offi- cer, civil or military, to arrest, any citizen." I want my counlrymen to mark well these words, and the condition of the country at the time they were uttered; and having done so, proceed with me to the consideration of the doctrines and lan- guage of this same man upon another occasion, and touching the powers of the President in the suppression of another rebellion, but one in a more northern latitude.

Martin Luther was a citizen of Massachusetts, and Captain Child and his company of infantry were ordered to arrest him, and, if necessary, to break open his house for that purpose, as one accused of aiding and abetting the Dorr rebellion ill Rhode Island'. The President of the United States had taken measures to call out the militia of the States to aid the Governor of Rhode Island in putting down the rebellion in which Luther was "abetting," and Chief Justice Taney (7 Howard, 44) declares that this interference of the President, " by announcing his determination, was as effectual as if the militia had been assem- bled under his orders, and it should be equally authoritative." It does not appear that this Lu- ther had actually been in the army. He, in the plea justifying his attempted arrest, and breaking his house, is only accused of having "aided and abetted" the insurrection. No judicial process was ever issued for him. The ortler for his arrest was made by a mere military officer, who acted under the sanction and authority of the President as stated above by Judge Taney. Luther sued these military men for breaking his house to ar-

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rest him, and the question wliich came before the Supremo Court of the Unite.l States was whether tilt! military aulliorities,\iy order of tlie President, and without any judicial process, had the right to arrest this man and to break liis house open for that purpose! in order to suppress this insurrec- tion whicii Luther was abettinsr, and whether tlie courts or judges of the United States could med- dle with this authority of the President. It was the precise constitutional»mdlegal question which was before Taney in the Merryman case. And how did he then decid* it? He not only decided that the Piesident had the right to use the militia to arrest this "abettor" of insurrection, and to break open his house for that purpose, and that without any judicial process being issued tor his arrest, but he went on to lay down the doctrines whicli I now quote, and which I set in contrast with those he promulgates now in aid of this re- bellion for the total overthrow of the Government ujiou whose bounty he feeds. He declares, (page 45:) " Unqueftioniil)ly a State may use its military power to

Eut down armed insiirreclion too strong to be controlled y the civil autlioritv. Tlie power is essential to the exist- ence oC every eoveriimeiit, essential to the preservation ol order and fre'j; institutions."

I put this declaration of the Supreme Court, from the lijis o'f Chief Justice Taney, in contrast with his denial of the powers of the Government of the United States now to arrest men when neces- sary for self-preservation, whicli 1 quote above. But the part of this opinion to which I invite spe- cial attention is expressed as follows:

" After the President has acted and called out the militia, is a circuit court of the United States autlioiized to inquire whether his decision was right.' Could the court, while the ; parlies were actually contending in arms for the possession j of thu Government, call witnesses hetore it and iii(|Uire wliich party represented a majority of the people ? If it could [ then it would hecome the duty of the court, provided it came to the conclusion that the President had decided incorrectly, to discharge those who were arrested or detained by the ; troops In the service of the Uniled States orof the Govern- ; ment which the President wtis endeavoring to maintain. If i the judicial power extends so far, then the guarantee con- tained in the Constitution of the United States is a guaran- tee of anarchy and not of order."— 7 Howard, 43.

Here, then, we have il set down in a solemn opinion of the highestjudici.il tribunal of the Unir ted States, and that opinion pronounced by the author of this Merryman opinion, not only that the President, by a military force, may arrest a citizen abetting a rebellion, by a military order and

without judicial process— not only that the courts cannot iiilerfere with these arrests by the Presi- dent or discharge his prisoners who have been ar- rested by the troops in the service of the United States— not only tliat this power is essential to the existence of £very government, hut we have it sol- emnly urged that if the judicial power did extend so far as to discharge those arrested by the Presi- dent in quelling a rebellion, then tlic guarantees contained in the Constitution by which the Presi- dent may suppress such rebellion become guar- antees of anarchy and not of order.

Mr. Chairman, th(! Supreme Court of theUni- ted States have decided this important question, and have wisely accorded to the President this power " essential to the existence of every gov- ernment."

It is no answer to this decision to say that it derives this power of the Presidenlfrom theaclof 1795; because, first, it does not derive it alone from that act, but from the " guarantees contained in the Constitution," as is expressly slated by the court; and .second, because, if the Constitution does not permit the President to arrest "any man" " in any emergency," except in aid of some ju- dicial process, then the act of 1795 had no right to authorize Luther to be arrested without judi- cial process, and the law of 1795, which gave the right, must have been held unconstitutional. Be- sides, if the act of 1795 authorized the President to arrest Luther without process and by mere mil- itary orders, and to hold him so that the " court could not discharge those who were arrested or detained by the troops in the service of the United States," (7 Howard, 43,) then 1 beg to be informed why Merryman and his co-conspirators could not also be so arrested and held in virtue of the same act of 1795.

Mr. Chairman, the English drama has written upon the stones of the forum where conspirators stabbed Cajsar that sentiment which English mo- rality has transcribed upon the dishonored tomb of Jeffreys —

'• Judgment, thou art fled to brutish beasts, And men have lost their reason !" i And, sir, history will have done for posterity her highest offices but poorly should she not re- cord as headlines of that chapter where she writes the judicial history of Merryman 's treason some such sentimentofwarningas this: the arrow meant for the heart of the Constitution was barbed by the head of its own judiciary.