_Circuit Courts._
The bill sent from the Senate, entitled “An act establishing circuit
courts in the district of Kentucky, Tennessee, and Ohio,” together
with the amendments agreed to on the thirteenth instant, were read a
third time: Whereupon, the bill, with amendments, was recommitted to a
Committee of the Whole this day.
The House, accordingly, resolved itself into the said committee; and,
after some time spent therein, the bill and amendments were reported
without amendment thereto.
The bill was then read the third time, and on the question that the same
do pass? it was resolved in the affirmative--yeas 82, nays 7.
_Lewis and Clarke._
The House resolved itself into a Committee of the Whole on the bill
making compensation to Messieurs Lewis and Clarke, and their companions.
The bill was reported with several amendments thereto; which were
severally twice read, and agreed to by the House. The House proceeded
further to amend the said bill: When an adjournment being called for, the
House adjourned.
TUESDAY, February 17.
_The Writ of Habeas Corpus._
The House proceeded to consider the motion of Mr. BROOM, of the seventh
instant, and the same being read in the words following, to wit:
“_Resolved_, That it is expedient to make further provision, by
law, for securing the privilege of the writ of habeas corpus,
to persons in custody, under, or by color of, the authority of
the United States.”[48]
Mr. BROOM addressed the House as follows:
Mr. SPEAKER: It will be recollected by the House that I had the honor of
submitting a resolution to make further provision by law for securing
the privilege of the writ of habeas corpus to persons in custody, under
or by color of the authority of the United States. It was then my wish
that it should lie upon the table, in order that members might have
an opportunity of considering the subject; being fully persuaded that
the more it was considered the more evident would the importance of it
appear. As it now becomes my duty to call the attention of the House to
the subject, I shall move that the resolution be referred to a Committee
of the whole House, and I should not offer a single observation in
support of this motion, but for the doubts which have been suggested
by several members, of the necessity and propriety of legislative
interposition at this time. I trust therefore that I shall be indulged in
pointing out the necessity and importance of the provision which it is
contemplated to make. I am sensible that this subject is not familiar to
the majority of this House; for, until now, no circumstance has occurred
in this country which could make us duly appreciate the value of the
privilege of the writ of habeas corpus. In ordinary times, the laws which
already exist may be sufficient, for in such times there is no temptation
to transgress the limits of constitutional or legal privileges; but
in times of turbulence and commotion, the mere formal recognition of
rights will afford too feeble a barrier against the inflamed passions of
men in power, whether excited by an intemperate zeal for the supposed
welfare of the country, or by the detestable motives of party rancor or
individual oppression. I could have wished that circumstances had never
occurred which would make it necessary to fortify, by penal laws, the
constitutional privilege of habeas corpus, and that the whole nation,
from the first to the least, had regarded it with such religious
veneration, that no officer, either military or civil, would have dared
to violate it. But recent circumstances have proved that such a wish
would have been in vain, and have demonstrated, more powerfully than any
abstract reasoning, the necessity and importance of further legislative
provision.
This privilege of the writ of habeas corpus has been deemed so important
that, by the ninth section of the first article of the constitution, it
is declared that it shall not be suspended, unless when, in cases of
rebellion or invasion, the public safety may require it. Such is the
value of this privilege, that even the highest legislative body of the
Union--the legitimate Representatives of the nation--are not entrusted
with the guardianship of it, or suffered to lay their hands upon it,
unless when, in cases of extreme danger, the public safety shall make it
necessary.
The suspension of this privilege upon slight pretences, it was easily
foreseen would destroy its efficacy, and if it depended on the mere
will of Congress, it would become, in the hands of the majority, the
most certain and convenient means to accomplish the purposes of party
persecution, or to gratify political or personal rancor or animosity.
This constitutional provision was only intended as a check upon the power
of Congress in abridging the privilege; but was never intended to prevent
them from intrenching it around with sound and wholesome laws; on the
contrary, it was expected that Congress were prohibited from impairing,
at their pleasure, this privilege; that they would regard it as of high
importance, and by coercive laws insure its operation. By the fourteenth
section of the judiciary law, vol. 1, L. U. S., page 58, power is given
to certain courts and judges, to grant the writ of habeas corpus; and
this is all the provision made by any act of Congress to secure this
privilege. Thus the constitution sanctions the writ, and the act of
Congress gives the judges power to grant it; but there is no law of the
United States which compels the judge to grant it, or the officer to obey
it; and the only remedy left to the individual is that which he derives
from the common law of England, (if, indeed, gentlemen will allow to that
law any operation in the United States courts;) and that very law upon
which we now rely to enforce the privilege was found, during the reign of
Charles II., utterly insufficient, and has ever since the thirty-first
year of that reign, been considered in England as only auxiliary in
securing the privilege of the writ of habeas corpus.
As the House has now agreed to consider the motion, I will proceed in
support of it. The statute 31, chapter 2, was designed to remedy, and
did effectually remedy, the defects of the common law provision on this
subject. By that statute severe penalties were imposed on judges refusing
to grant the writ of habeas corpus, and on all parties refusing to obey
it. In most of the States, laws have been made upon the principle of
the statute of Charles, and so far as they extend, are found to have the
most beneficial effect in securing the privilege of the writ, but they do
not extend to inflicting penalties on judges of the courts or officers
of the United States. If the privilege of the writ of habeas corpus be
important, and the laws be defective, it is surely our duty to apply the
remedy. Of its importance, it is true we have had but little experience
in our own country. In England, from whence we derive our knowledge of
it, they have proved its value; they have tried it, and it has not been
found wanting. In England, this inestimable privilege has been for ages
the proud theme of exultation; there they worshipped it as a talismanic
wand which could unbar the gates of the strongest prison and dissolve in
an instant the fetters of the captive. It was to Englishmen as a wall of
fire by night, shielding them from the arbitrary sway of tyrannic power.
It is, indeed, the great palladium of that English civil liberty which
has exalted the English character. Of the power and influence of civil
liberty upon the happiness of the people of England we need no stronger
evidence than the situation of surrounding nations, where it was unknown.
Let us go back to less civilized times, and we shall see in those nations
men in the most abject state of society, suffering oppression in every
possible shape; there, every private castle was a secret and inviolable
prison; there the life and liberty of the most illustrious, as well as
the meanest, subject, were alike the sport of the caprice of a tyrant.
Even the petty lordling held as it were the shears of fate, and cut at
pleasure the thread of the life of his vassals. A _lettre de cachet_
could confine the unhappy victim of power for life in the loathsome walls
of a dungeon, and in spite of the ties of affection or blood, friends
must forget each other, or share a common fate. The savage tortures of
the inquisition chilled the soul with horror, and the gloomy recess of
the sanctuaries of religion too often bore witness to the diabolical
temper of man when inflamed with passion and unrestrained by wholesome
laws. Such was the condition of other countries while the people of
England were reposing in security under the protection of their civil
institutions; institutions which had received the sanction of ages, and
were guarded by the religious veneration of the people. The right to
personal liberty, unless for the commission of an offence against law;
the right to know the accusation against them, and the right to be tried
by their peers, were all recognized by their charters, and which their
monarchs had sworn inviolably to observe. These rights were not merely
secured by parchment; they were incorporated with the habits, manners,
and customs of the people; they were handed down from father to son in
trust for posterity, and guarded as a precious inheritance, which could
never be diminished with honor. The people were early taught to know
them, and to consider it a sacred duty to draw their swords in defence
of them. These fundamental rights of Englishmen have existed from their
earliest ages; they were collected in a body by Edgar the Saxon; they
were revised by Edward the Confessor, and were ratified by William the
Conqueror; they were recognized by Magna Charta, and after the wars
between Henry III. and his subjects, were confirmed by the statute of
Marlborough, and never afterwards questioned. Rights thus maintained
through all the convulsions of England; rights thus endeared to the
nation, and engraven on the hearts of the people, and which have walked
hand in hand with them through the darkest periods of their history,
require no other proofs of their importance.
It has been too generally our misfortune to wait until offences have
been committed, before we have provided a punishment; but, when such
offences have been committed, the public attention has been awakened, and
laws have been passed to guard against them in future. The violations
of our constitutional privileges at New Orleans, have shown clearly the
insufficiency of existing laws and the imperious necessity of providing
the remedy. If we will not be roused from our slumbers by the experience
which we have had, I shall despair that we will ever be awakened to
any sensibility of our personal rights--for, let it be remembered that
these abuses are not of an ordinary character--they have been committed
by a military officer at the head of the army of the United States,
and in full view of the highest authorities of the Union. The civil
authority at New Orleans has been trampled under foot, and the commander
of the army, in the plenitude of his power, avows his disobedience to
laws and constitution, and takes on himself all the responsibility of
the violation of our constitutional rights of personal liberty. Lost
in amazement at this bold and unprecedented stretch of power, we can
scarcely be sensible of its extent, unless we contrast it deliberately
with the constitution. The constitution declares that no warrant shall
issue but upon probable cause, supported by oath or affirmation; that
no citizen shall be deprived of his liberty without due process of law;
and that the accused shall enjoy the right of a speedy trial by a jury
of the district where the offence was committed. Yet, in defiance of
all these constitutional provisions, our citizens have been arrested
without any warrant, and without any process of law whatever; deprived
of their liberty; confined in military prisons, and transported under
military guards, two thousand miles from the place where the offence was
committed. The constitutional privilege of the writ of habeas corpus,
which is to secure these rights to the citizen, has been treated with
contempt, and a military officer vauntingly takes upon himself all
the responsibility of wilful disobedience to the writ. For all these
violations we are to be told that the conspiracy which existed in that
country will afford a sufficient justification. With respect to the
conspiracy, whatever might have been its contemplated extent we have
reason to believe that it is now at an end. And, without determining
whether the aspect which it had at New Orleans was really alarming to
the General, or whether any circumstances do exist which may palliate
his conduct, this much we all know, that his power was employed in
the arbitrary violation of the rights of the citizen, and that the
conspiracy is to furnish the justification. Such conduct, and even such a
justification, I look upon with abhorrence and dread. For, if, upon every
alarm of conspiracy, our rights of personal liberty are to be entrusted
to the keeping of a military commander, we may prepare to take our leave
of them for ever. For my own part, I wish to live under a government of
laws, and not of men; for, however pure and upright be the intentions
of our military commanders, however virtuous, and even unsuspected be
their conduct, I can never agree that my right to personal liberty shall
depend on their forbearance and discretion. I know not whether these men
that have been arrested are innocent or guilty of the treason with which
they are charged, but, whether innocent or guilty, they must be arrested
and tried according to law. However atrocious the crime which has been
committed, the punishment must be according to law. For, in transgressing
the limits of the law to revenge upon a criminal the wrongs of society,
we are guilty of injustice both to society and the criminal. The manner
and circumstances attending these arrests, have been of the most uncommon
kind. It is said that all intercourse between one of the prisoners and
his family and friends, was cut off, and that not a soul, except military
men, was suffered to approach him; that, after being detained under close
military confinement for nearly two weeks, he was transported, by the
way of Baltimore to this city, and that, upon his arrival here, he was
informed that there was no evidence to support any charge against him
whatever. But whether this man, or the others who have been arrested, are
guilty or not, it can have no influence upon our deliberations at this
time. For, if even these violations now affect only the guilty, they may,
at the discretion of the military officer, be extended to the innocent.
It is enough for us to know that the rights of personal liberty,
guarantied by the constitution, have been openly violated in the person
of a citizen of the United States, and that no laws exist sufficiently
effectual to prevent or punish such violations. It then becomes our duty
as faithful guardians of the public rights, to interpose our authority
in order to preserve them. But, if we content ourselves with tamely
looking on, while our best rights are trampled upon, we become partakers
of the guilt by the encouragement which we give the offenders. For these
violations, what remedy has the most innocent individual against the
officer who arrested and transported him? As the laws of the United
States have provided none, his remedy is at common law. He must sue for
false imprisonment, and it depends entirely on the jury to say whether
they will give him any thing or nothing. Can a remedy so uncertain
prevent the offence? or, will a remedy so precarious, always remunerate
the injured? But, if to this we add exemplary penalties, we have, surely,
an additional security that the laws will be obeyed. The laws are not,
and in my opinion will not be sufficient, unless they punish in the most
prompt and exemplary manner all judges who refuse to grant the writ of
habeas corpus, and all officers who refuse to obey it. For such offences,
ruin ought to stare a man in the face; and, when he has so seriously
abused his power, he ought to be stripped of it forever. But, if we have
no laws to guard us against these abuses, and are unwilling to make any,
we take upon ourselves all the responsibility of future violations.
Mr. BURWELL said he had determined to vote for the reference of the
resolution, that the mover might suggest any additional security to
the personal liberty of the citizen he thought necessary, although he
did not believe a change in the law material, or that one essential
provision had been omitted. Had the gentleman from Delaware confined
his remarks to the subject of his motion, and avoided observations
unconnected with his ostensible object, he should have acquiesced
silently. The Constitution of the United States recognizes the writ of
habeas corpus, without determining in what manner it shall be enforced
in the courts. That can only be ascertained by recurring to the acts of
Congress in 1789, establishing a judicial system, organizing courts, and
fixing their powers. The fourteenth section of that law relates to this
writ, and says: “This and all other writs not specially provided for by
statute shall be issued agreeable to the principles and usage of law.”
Mr. B. contended the principles here alluded to could only be those of
the English law, and the usages those of their courts; otherwise there
could not be found in the constitution, or laws of the Union, a single
sentence relative to the subject, and the decisions heretofore had in our
courts would be consequently illegal. He said he was fully justified in
this position by the uniform proceedings in the courts, and particularly
those which had recently taken place in this district before the court
acting expressly under the laws of Congress. To show how ample the
provisions were, he referred to Blackstone’s Commentaries, vol. 3, page
137, statute Charles 2d, “Any prisoner may move for and obtain his writ
of habeas corpus, &c., and the Lord Chancellor or judges denying the
same on sight of the warrant or oath, that the same is refused, shall
forfeit to the party grieved, the sum,” &c. The judge is here compelled,
under heavy penalties, to afford relief to all persons who apply for the
writ, and we shall presently see the law guard against delay or evasion
by further limitations on the discretion of the judges. Mr. B. said he
admitted the specific penalties of the statute did not attach to the
judges and courts of this country; but it established their duties,
and the punishment inflicted is regulated by the Constitution and law
of the United States applicable to judicial offences and misdemeanors.
The same statute provides, “that officers and keepers neglecting to
make due returns, or not delivering to the prisoner or his agent a copy
of the warrant of commitment within six hours, or shifting the custody
of the prisoner without sufficient authority, shall forfeit,” &c. In
addition to this, the court could enforce its process by attachment,
fine and imprisonment, and call on the Executive for aid, if resistance
is made. Mr. B. said this statute was considered as having completely
guarded against oppression, and was expressly intended to put an end
to the evasion of the judges: “The oppression of an obscure individual
gave birth to the famous habeas corpus act, 31st Charles 2d, which is
frequently considered as another magna charta of the kingdom, and by
consequence and analogy has also in subsequent times reduced the general
method of proceeding on these writs, and (though not within the reach
of that statute by issuing merely at common law) to the true standard
of law and liberty.” Black. Com. 136. What more is requisite? Your
courts are compelled to issue process and grant relief; your officers
to carry it into effect, and your citizens to obey. Mr. B. observed, it
appeared to him impossible to devise additional provisions, when those
already incorporated into the jurisprudence of the country by the act of
Congress, and exercised by the courts, embrace every case arising under
the laws, and extend to all persons confined under the authority or color
of authority of the United States. He, however, was not a professional
man, and was therefore the more disposed in favor of the commitment, lest
he should be mistaken in his impressions. If the gentleman from Delaware
should discover any salutary alterations, he should not only receive his
vote but his thanks.
The gentleman from Delaware says, the late arrests at New Orleans by
the military are early warnings of the danger of standing armies. Mr.
B. accepted the hint, and hoped the gentleman would himself recollect
and profit by it. Those who acted with him had long been partial to
those establishments, and blind to their tendency. The events alluded
to proved the indispensable necessity of preserving them subordinate to
the civil authority. This proved the importance of reducing the standing
army to the lowest point compatible with the safety of the frontiers.
This was the reason which induced him during the present session to vote
against the proposed augmentation of our forces; and while he continued
to entertain his present opinions, and felt his present jealousies of
a conflict between the civil and military power, he was determined to
avoid the issue by keeping the latter in complete subordination. If
an opposite policy should ever become ascendant in this country, the
measures at New Orleans, instead of being temporary, will be entailed
upon us. Mr. B. said he thought it improper to mention the events which
had occurred at New Orleans. It was extremely probable prosecutions would
be commenced against the officer, and any expressions of disapprobation
in that House would give a tone to public opinion which justice required
should as yet be suspended. Every person admitted the Commander-in-chief
had violated the law. He admitted it himself, and assigned reasons of
justification which we ought not to decide, but leave to the courts of
justice. They are the proper tribunals to punish those who infringe the
rights of the citizen; and until they are closed by power, or their
decrees set at defiance, and the Executive unable to enforce them,
legislative interference cannot be necessary. It has been said, every
officer who refuses to obey the writ of habeas corpus from a court should
be punished with death; and this has been proposed as an effectual
provision to secure the benefit of this writ. Has the gentleman so soon
forgotten the doctrine advanced on that side of the House, and assented
to during the present session, when we were told a military officer knew
no law but the orders of his superior; when we were told the contrary
was monstrous, absurd, and subversive of all subordination in the army;
that they were not lawyers versed in your laws and constitution? Mr. B.
hoped he had. But the gentleman from Delaware had run into exactly the
opposite extreme, by placing the highest and lowest officer upon the same
footing, exacting from both the same knowledge of the law, attaching the
same responsibility, and, contrary to every principle of justice and
humanity, punishing with the same severity the man who intentionally and
knowingly violates the law, and the man who ignorantly commits a breach
of duty. It would completely reverse what has been so long and wisely
recognized in our criminal jurisprudence. The redress allowed to a man
who has been forcibly seized and imprisoned without legal authority under
the existing laws, is much more conformable to equity than this mode. It
is an offence against an individual’s rights, and should be punished,
like all other injuries of a personal nature, by action and recovery of
damages, in which the jury will always have a just regard to the rank
of the offender, the innocence of the victim, and the wantonness of
the violence. They will discriminate between the lawless exercise of
power by the Commander-in-chief and the subaltern, who executes what he
supposes he is bound by his oath to perform. Mr. B. said the mover of
this resolution had expressed more alarm at the situation of this country
than was real, or than he supposed was felt by any member of this House.
One would imagine that the arrests at Orleans had extended through the
whole nation, and that no man was safe from persecution. As far as he
had understood, the moment those arrested had reached the United States,
they had been turned over to the courts, and every privilege been
extended to them. The people of this country can never be in danger
while their Representatives remain pure, and are disposed to withhold
from the Executive dictatorial powers. Have we not already, during the
present session, given the most honorable pledge to our constituents
that we are not inattentive to their security, when we rejected the bill
to suspend the writ of habeas corpus? Why talk of the lettres de cachet
which have issued in France, and of other oppressions in that nation?
Our Government is neither actuated by such passions, nor invested with
such powers. It is degrading to assimilate the two Governments, and argue
from a similarity which does not and cannot exist. The one is composed of
responsible agents; the other is despotic, cruel, unrelenting and corrupt.
But we are told that a most daring violation of human right has taken
place--that men have been seized in New Orleans and shipped here for
trial. Far be it from me to exaggerate or soften these acts. Such as they
are, I am willing to trust them to an enlightened community. An officer
has undertaken at his own responsibility to seize and send here three
persons. Two of them charged on his oath with treason, or misprision
of treason, and the third by him believed to be guilty. The first two
on their arrival here, were delivered over to the civil authority, and
on solemn argument committed on a charge for treason. The other was
delivered over to the civil authority also and discharged. No man will
say that the conduct of the officer who seized and shipped these persons
is legal. He has done an illegal act at the risk of his fortune in
damages. Let the law take its course; let the individuals prosecute; let
an honest jury put on one side the crime with which they are charged, and
on the other, illegal arrest and shipment; let them strike the balance.
If they assess damages, and it shall hereafter appear that this was
a wanton and unnecessary exercise of power, the officer must suffer.
If, on the contrary, it shall appear that the officer had no object in
view but the public good, that he did really believe New Orleans about
to be attacked by a superior force, and that these prisoners could not
be safely kept there, I for one, shall not hesitate to pay the damages
assessed against him. Freedom can never be endangered by an act like
this, where your laws are suffered to take their natural course without
suspension or interruption--where the injured individual can bring before
a jury his claim for damages. What more safe, more certain, or adequate
remedy can you ask for an injury done to personal freedom, than the
verdict of a jury of freemen? What would be the feelings of an honest
and independent jury called upon to decide a case like this, where
an innocent individual of character had been seized and shipped? The
damages would be such as to heal the wounded feelings of the oppressed
individual, and to deter in future the commission of such an act. If,
on the contrary, strong circumstances of guilt should appear against
the individual, the damages would be nothing. The officer must depend
on establishing before the community the purity of his motives, and the
probable guilt of those on whom he has exercised power in violation
of right. If the individuals seized and sent here shall be found to
be innocent, I should wish them to recover heavy damages. Under my
present impressions, I should certainly, if on their jury, not assess
damages. If the charges made against them are well founded, I would
as soon give damages against an individual who seized and secured for
trial a highway robber. The public officer who knows of the existence of
treason; who sees an individual embarked in schemes dishonorable to his
country; who believes him aiding an approaching enemy, would deserve to
be broke if he did not seize him. On the present occasion the officer
has gone further--he has seized and sent them to you. He has violated
the personal right of the citizen. If from honest zeal for the public
good, he will find a sure protection and shield before an independent
and patriotic jury. If the persons are innocent, and have been seized
by him to wreak private resentment, or on any motive less pure than the
public welfare, his reputation as a soldier is destroyed, and his fortune
must be lost in damages. I do not believe, however, that much sympathy
will be excited in the public mind, when the people shall understand
about what, and about whom, all these clamors have been raised. What is
the naked fact? General Wilkinson has seized and sent round to the seat
of Government three persons, at a time when he believed New Orleans in
danger of being attacked by a superior force. Of these persons, the one
is a bankrupt foreigner, charged on oath with being an accomplice of
Aaron Burr. The second, a young American, charged also on the oath of
your Commander-in-chief, with having disgraced the American character, by
condescending to be employed as an agent for corrupting your army; with
having actually carried proposals of bribery to your Commander-in-chief.
The third, a foreign lawyer, who owes to the liberality of the people
of this country his bread. Two of these persons, in good Federal times,
might have been transported under the alien law to Botany Bay. But men
are now seen in your courts actively denouncing this measure, who voted
for and perhaps brought forward the alien law. I mention not this to
justify the present proceeding, but to show to the people the spirit
in which this resolution has originated. Your Commander-in-chief has
been placed in a difficult situation. In daily expectation of an attack
by a superior force, and opposed by the whole body of the law in the
territory, a man greatly his superior in talents and firmness might have
erred. He ought most certainly to have delivered over these persons to
the civil authority. Had he done this, however, it is not yet decided
where the trial would have been held. The district court of New Orleans
has the same jurisdiction with the district court of Kentucky. The
Kentucky district court has the ordinary criminal jurisdiction of a
district court of the United States, which extends only to offences
punishable by fine or whipping, and the whole civil jurisdiction of a
circuit court of the United States; so that these persons, if charged
with treason against the United States, could not have been tried in
New Orleans, and must have been sent here or elsewhere by the civil
authority. Thus much for the violation of right which has taken place.
Mr. BIDWELL observed, that on a motion to refer this resolution to a
Committee of the Whole, he thought it unnecessary to discuss the merits
of the subject at large; since the very object of the commitment was to
afford a full and fair opportunity for such a discussion, and for any
specific proposition which the mover might think proper to submit. He was
in favor of the proposed commitment, but on very different grounds from
some of those which had been urged. Whether the conduct of the commander
of the army in arresting certain persons who attempted to corrupt him
and to seduce the army, to join in a conspiracy against their country,
was to be condemned or not, was a question not suitable to be acted on
at the present time, and under existing circumstances. If the House were
the proper tribunal to decide that point, this was not the proper mode of
deciding it, nor the proper time for the decision. No one would deny that
the commander of an army or of a post might be so circumstanced that it
would be his duty to make a seizure of suspected persons, or perhaps do
other acts not provided for by any law. In such a case he must act under
a high responsibility, and throw himself upon the justice of his country.
On this ground General Wilkinson had professed to act. If his professions
should be justified by the real state of facts, he would be entitled to
a favorable consideration. But at present it was unseasonable for the
Legislature to express any opinion or take any measure. He regretted,
therefore, that the gentleman from Delaware (Mr. BROOM) had resorted to
this transaction in support of his motion. On general principles, Mr. B.
added, he was willing to go into a Committee of the Whole on the subject.
The importance of the privilege of habeas corpus was acknowledged by
all. The constitution, by restricting the Legislature from suspending
it, except when in cases of invasion or rebellion, the public safety
may require a suspension, had recognized it as a writ of right, and our
statutes had authorized certain courts and magistrates to grant it.
It had been, indeed, in some respects doubtful where the authority to
issue such writs was lodged. Whether, for instance, the Supreme Court,
a circuit court, or the justices of the Supreme Court, out of their
appropriate circuits, had that authority, were questions on which not
only professional men, but judges themselves, had differed in opinion.
Some improvements, perhaps, might be suggested. Although he lamented that
the gentleman from Delaware had moved the subject at the present time,
while some of the questions involved in it were under the consideration
of the judiciary, and that he had referred, in his argument, to the late
transactions at New Orleans, of which we have not sufficient information
to form a satisfactory judgment, yet he would consent to refer the
resolution to a Committee of the Whole, for the purpose of considering
such propositions as that gentleman might offer for the amendment of the
law.
Mr. EARLY.--Mr. Speaker, the motion, timed as it is, and accompanied
by the speech we have this day heard from the honorable mover, has
a suspicious aspect and influence upon certain judicial procedures,
depending at the present moment within the walls of this building. Is
this House willing to suffer such manœuvres to take their proposed
course, and to produce their wished-for effect? Are they prepared to
interpose the weight of their influence to ward off the infliction of
punishment upon traitors, by passing sentence of condemnation on acts
which have produced their arrest and confinement? But it is not now alone
that this pernicious tendency of the resolution is to be felt. Actions
for damages are no doubt to be brought against the Commander-in-chief.
Whether the damages which may be recovered, ought or ought not to be made
good to him by the Government, must depend upon circumstances yet to be
developed. That he has violated both law and constitution, is not denied.
But whether there existed that imperious necessity for such violation
which alone can justify it, and give him a claim upon the Government for
the damages to which he may be subjected in consequence thereof, can
only be determined upon a full view of all circumstances. Here presents
itself another strong objection to the resolution. Its tendency is to
procure now that expression of opinion by the National Legislature, in
relation to the events at New Orleans, which will, which must, raise a
powerful obstacle hereafter, against a remuneration of any damages that
may be recovered against the Commander-in-chief. To this I will not
consent--against it I hold up my hands, and enter my most solemn protest.
There is still a farther objection; the tendency of the resolution, if
adopted by the House, will be to influence the amount of damages which
may be assessed. Yes, sir, it will be viewed as the expression of an
opinion on the part of Congress as to the demerits of the act for which
damages are claimed. The effect upon the minds of a jury is even more to
be dreaded than that upon the opinion of the judges. Who is there that
cannot perceive its force? Who that must not deprecate its effect? If it
should be observed that the resolution itself cannot be open to all the
objections now urged against it, let it be recollected that the honorable
mover has taken special care to give to it a direction, and accompany
it by circumstances which must insure to it the operation complained
of. In ordinary cases there can most certainly be no objection against
an inquiry after defects in any branch of law, with a view to the
application of some remedy. But such is not, as I apprehend, the state
of the present question. Admit, for argument’s sake, that a defect does
exist in the present provisions for securing the habeas corpus privilege,
can an adequate remedy be now applied? It cannot, we know it cannot.
But, Mr. Speaker, where is the proof that the provisions now in force
are not sufficient for the security of the person? Have you any
evidence to this effect? If you have, I am ignorant of it. Are not the
courts of justice open? Let the persons injured resort thither. Let
their complaints be laid before an American jury. Will not an adequate
redress be had there? Are the people of the United States too insensible
of the value of the privilege of the habeas corpus to award damages
proportionate to the injury sustained by its infraction? Or is it that
gentlemen suspect, that the individuals who have been arrested were
engaged in a plot so diabolical that a jury would, upon a view of the
whole ground, assess damages too inconsiderable to comport with their
wishes? Is it for this reason that the American Congress are asked to
prejudge the case, and to throw their weight into the scale against an
officer who, from every thing that yet appears, has acted from motives
of the purest patriotism? The part he had to perform was one of the most
arduous ever assigned to the lot of man. Entrusted with the defence of
an important and extremely remote point, where all was to be done before
instructions could be received from his Government, every measure was to
be taken by his own judgment and upon his own responsibility. His chance
of information as to the extent of the danger was extremely limited,
and, so far as facts have come to light, he had powerful reasons for
believing that the conspiracy was deeply laid--that it had diffused
itself extensively in the very bosom of the country against which it was
directed, and that it would be supported by a military force far more
numerous than any he had at command.
Mr. BROOM.--Mr. Speaker, I confess that the opposition which this
resolution has met with does surprise and astonish me, and more
especially when I consider the quarter from which it comes. That those
who have been the most clamorous about the rights of the people, who have
been jealous in the extreme of even the lawful exercise of power, who
have assumed to themselves almost the exclusive privilege of protecting
our rights, should now refuse even an inquiry whether those rights cannot
be better protected, is to me a problem which I cannot solve, unless I
suppose that these were principles and professions intended only for
opposition, but never as the guide of administration. But when the
principle is avowed that no laws shall be enacted for better securing our
personal rights, and that no inquiry even on the subject shall be made
at this time lest it might cast a censure on the conduct of an officer
who violated them, I consider it my duty to protest against it. Sir, is
it come to this, that when the Commander-in-chief of the Army of the
United States shall turn his arms against our constitutional rights, that
we shall not provide against future violations for fear of exciting a
prejudice in the public mind against the officer? Prostrate indeed must
be our condition when we can see our great rights of personal liberty
trampled upon by a military commander, and be deterred from legislating
lest the punishment of future violations should be construed into the
murmur of disapprobation of the past! For my own part, I deprecate
such a state of things, and, in spite of party, trust that the highest
legislative body of a free people will not be found so unfaithful to
themselves and their country as to give it their sanction.
The Message of the President, of the 22d of January, informs us that
two persons have been seized at New Orleans by General Wilkinson, and
embarked for ports in the Atlantic States, and promises that, upon their
arrival, they shall be delivered over to the custody of the law. General
Wilkinson states that Mr. Bollman, one of the persons so seized, was
required by the superior court, but that he got rid of that affair under
the usual liability for damages. Another message informs us of their
arrival here, and that measures are taken to hold them in custody. These
facts warrant me in saying that, in defiance of the Constitution of the
United States, persons have been seized by military authority; that
they were demanded by the civil authority; that the military refused
to deliver them up; and that they were transported under military
guard, and by military authority alone, to this city, and that here the
first steps were taken to put them into the custody of the law. Is it
possible that we can shut our eyes upon these transactions, or reconcile
it to ourselves to become the mere passive spectators of this violent
usurpation of power? What excuse can any man render to his country for
his supineness, in case of the commission of future violations? Can he
plead his ignorance of what is officially communicated to him? Or can he
say he was not warned of the dangerous consequences of these measures,
or of the insufficiency of the laws to prevent them? The whole country
know the fact, and deprecate the consequences, and they know also that
we have received official information of them, and they look to us, as
their Representatives, to use every means in our power to prevent the
recurrence of them. Can any man be willing that his right to personal
liberty shall depend on the will of an executive or military officer? If
he can, he does not deserve to possess the right, and is well represented
by those who refuse to protect it.
In speaking of probable cause of arrest, I confined my observations
to the case of Mr. Alexander. I have seen no message informing us of
the particulars of this case, but it is said that this gentleman, in
his professional character, moved the court at New Orleans for a writ
of habeas corpus, for one of the persons arrested by military orders;
upon the refusal of the General to obey the writ, he either moved, or
was about to move the court for an attachment against him, and was soon
after arrested by order of the General, and transported to Fort McHenry,
at Baltimore; from thence he was brought to this city, and taken before
a judge of the Territory of Columbia, where he was informed that there
was no charge against him sufficient to warrant his arrest, and he was
accordingly discharged.
I now put it to the candor of gentlemen to say whether in this case there
was any probable cause of arrest, or whether the same outrage might not
be practised upon any other citizen of the United States upon the same
principle, by the commander of any fort or garrison; and I will ask,
also, whether the General might not as well have sent him to California,
or Nootka Sound? For he was not charged with any offence upon which he
was liable to arrest. If we have constitutional privileges, we must be
always ready to protect them; and if the privileges now violated are
not worth protecting, where are we to make the stand? When we see a
cancer even in the extremities of the body politic, we must apply the
knife, or the caustic, or it will reach the vitals. There ought to be no
temporizing; for it will become the more inveterate and confirmed, the
longer we delay. Without the most prompt attention to the preservation
of our privileges, we may have the form, but we shall not long have the
substance of a free Government; and of all Governments I think that the
worst, where the sound of liberty supplies the place of the reality, and
a thousand petty tyrants take shelter under the cloak of republicanism.
It is said these men could not be tried at New Orleans; it is not
material to involve in our discussion this question; for if they could
not be tried they might have been imprisoned there, until they were
transferred according to law to the place where a trial could be had; but
it can never be justifiable in a military officer to seize and deport
to any part of the United States, any citizen whom he might suspect of
guilt. If it were admitted, an officer might carry a man from place
to place until he found judges and juries disposed to convict--the
constitution to the contrary notwithstanding. General Wilkinson’s
zeal may have been sincere and his motives pure, and the pressure of
circumstances such as to make him feel justifiable in his conduct; but,
sir, we never can with safety entrust such unlimited discretion to any
military officer; and such conduct, however innocent the motives, ought
to be guarded against by the most severe laws. The second objection
of the gentleman from Massachusetts is, that the laws are already
sufficient. They surely have not been effectual to prevent the abuse of
the privileges of habeas corpus. The writ was issued at New Orleans, and
General Wilkinson in open court took upon himself the responsibility of
refusing to obey it. The writ was issued at Charleston, and the officer
refused to obey it, and the military continued in possession of their
prisoner until they arrived at the place of their destination. The people
of England never considered the writ of habeas corpus perfectly secure
until it was strengthened by the statute of Charles.
Mr. JACKSON had hoped that the gentleman from Delaware would have
contented himself with professing his regard for the rights of the
citizen, and not troubled the House with the long speech which he had
delivered on the occasion. Mr. J. said it gave him alarm to find such
sympathy for men guilty of the most atrocious crimes. Treason in some
countries may be an act of magnanimity, but here it is the worst of all
crimes, because it aims at the destruction of the best Government and the
happiest society in the world.
Mr. J. proceeded to observe that if any officer will violate the
constitution and take the responsibility, it is in vain to make laws
in order to prevent it. But were there no circumstances to justify
Wilkinson? He saw treason lurking on every side. There are cases in which
necessity affords a complete palliation. The President’s Message does not
confirm the declaration of the gentleman from Delaware, that there were
no grounds for a charge against Alexander. [Mr. J. here read Wilkinson’s
affidavit.] Does it not show that they are all linked together? Wilkinson
believed, and no doubt justly, that these persons could not be safely
imprisoned at New Orleans. When it appeared that the judges, at least
one of them, was desirous not to oppose the treason, it would have been
madness in the extreme to have left the traitors there, and especially
when it was expected that Burr would soon arrive with a powerful force.
The relief for abuses of the writ of habeas corpus is in trial by
jury. This is the best relief. But the violator is also liable to
impeachment, and is amenable to the Government. The outrages spoken
of have a remedy--the privilege of the writ is amply secured; if the
constitution has been broken, a law would also have been broken in the
same circumstances. Mr. J. then concluded by announcing his determination
to vote against the reference of the resolution.
Several members were rising to speak, when an adjournment was moved and
carried--yeas 60.
WEDNESDAY, February 18.
_Writ of Habeas Corpus._
The House resumed the consideration of the motion of Mr. BROOM, depending
yesterday at the time of adjournment.
Mr. ELLIOT.--Mr. Speaker, gentlemen have generally been disposed, and I
think with propriety, to consider the subject in two points of view.
First, to examine the merits of the proposed resolution upon general
principles, abstracted from all connection with events that have
occurred, either recent or distant. Secondly, to consider the propriety
of exercising the supreme legislative power, to preclude the recurrence
of events which have sacrificed for a time “the holy attributes of the
constitution,” to borrow the language of the great violator of the
constitution himself, at the shrine of military power.
Upon the first point, gentlemen who have expressed their sentiments,
have been unanimous, or nearly so, in declaring that legal provisions of
the kind now contemplated ought to be made, at a proper time, if those
now existing are insufficient and inoperative. Those who have told us
that the British statutes upon the subject of the writ of habeas corpus
are in force in the United States, or even that it is doubtful whether
they are so or not, need not have told us that they are not professional
men; it was a work of supererogation. No professional man could for a
moment entertain the idea that the statutes of Great Britain are laws
of the United States. The question may be considered as undetermined,
whether the common law of England, or any part of it, which has not been
expressly recognized by our constitution and statutes, is law in the
United States, considered in their federal character; it is at least well
known that upon that question, a unanimous opinion does not exist in the
first judicial tribunal of our country. For one, I do not believe that
the United States, as the United States, possess any code of common law.
I know of no laws of the Union but the constitution and statutes. That
constitution and those statutes have recognized, or rather referred to
certain portions of the common law, and particularly to certain technical
common law terms and rules, as rules of practice in the federal courts;
and beyond those the courts have common law powers. At all events, we
have not adopted any of the British statutes, and particularly, and by
mere implication too, statutes highly penal in their operation. The
doctrine is too absurd to be countenanced, upon serious reflection, by
any man of common discernment. The constitution has declared that “the
privilege of the writ of habeas corpus shall not be suspended, unless
when, in cases of invasion or rebellion, the public safety shall require
it.” But neither the constitution nor your laws have made it a positive
duty of the courts to issue the writ in any particular case; still less
have they secured the performance of that duty by any penal sanctions.
Can it then be improper to provide means to coerce the courts and
officers of the United States in this particular, and to leave to all the
citizens, at all times and under all circumstances, such an invaluable
constitutional privilege? Very few will deny or doubt the propriety of
the measure. But many will say that it is ill timed, and the question of
time naturally introduces us to the second scene of discussion.
It is said that it is improper at the present period to agitate the
question now under consideration. In my apprehension the objection is
a very strange one. The constitution has just been violated by the
commander of your army; violated at the point of the bayonet, and in
more than one or two of its most essential articles. In addition to the
celebrated part of that instrument which prohibits the suspension of the
habeas corpus, except by the supreme civil power, in crises of great
national danger, several of those amendatory articles which peculiarly
secure the rights of the citizen, and the adoption of which, on that
account, were necessary to reconcile the majority of the people to the
original constitution itself, have been disregarded and derided by a
military chieftain. I allude to the following articles, all of which have
been violated in most of their essential provisions:
“ART. 4. The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated; and no warrants shall issue,
but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized.
“ART. 5. No person shall be held to answer for a capital,
or otherwise infamous crime, unless upon a presentment or
indictment of a grand jury, except in cases arising in the land
or naval forces, or in the militia when in actual service, in
time of war or public danger; nor shall any person be subject
for the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty,
or property, without due process of law; nor shall private
property be taken for public use without just compensation.
“ART. 6. 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 be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel in his defence.”
It is obvious that most of the privileges intended to be secured by these
articles to our citizens have recently been denied to some of them, at
the point of the bayonet, and under circumstances of peculiar violence.
It may, indeed, be said that the privilege of the writ of _habeas corpus_
was not denied in the first instance; that it could not be said to be
suspended until the injured persons were placed in a situation which
entitled them to demand it from the judicial power of their country.
It is true that, notwithstanding _inter arma silent leges_, although
the laws were silent amid the thunder of arms, and although a thousand
terrors hovered around those who dared to exercise their professional
duties in support of the constitutional rights of the citizen, a writ
of _habeas corpus_ was claimed and obtained; and I had supposed that
the very singular return which is said to have been made to the writ
was placed on our official files. On searching them, however, I do not
discover it; but it has been published in all the newspapers, and a copy
of it is now before me, which I will read:
“The undersigned, commanding the Army of the United States,
takes on himself all responsibility for the arrest of Dr.
Erick Bollman, on a charge of misprision of treason against
the United States, and has adopted measures for his safe
delivery to the Executive of the United States. It was after
several consultations with the Governor and two of the judges
of this Territory that the undersigned has hazarded this step
for the national safety, menaced to its base by a lawless band
of traitors, associated under Aaron Burr, whose accomplices
are extended from New York to this city. No man can hold in
higher reverence the civil institutions of his country than
the undersigned, and it is to maintain and perpetuate the holy
attributes of the constitution against the uplifted hand of
violence that he has interposed the force of arms in a moment
of extreme peril, to seize upon Bollman, as he will upon all
others, without regard to standing or station, against whom
satisfactory proofs may arise of a participation in the lawless
combination.
“JAMES WILKINSON.
“HEADQUARTERS ARMY OF THE U. S.,
“_New Orleans_.”
Here is a return, not of obedience to the laws, and high reverence for
civil institutions, but of disobedience and defiance. The constitution
is violated in order to preserve it inviolate! Prostrated in the dust
by military power, for the purpose of maintaining and perpetuating its
holy attributes. And what great national object was to be accomplished by
such extraordinary measures? What necessity could exist of seizing one or
two wandering conspirators, and transporting them fifteen hundred or two
thousand miles from the constitutional scene of inquisition and trial, to
place them particularly under the eye of the National Government, when,
if the opinion of the officer himself was correct, it would immediately
become the duty of that Government to suffer them to go at large? In
regard to one of them, the General was uncertain whether he had committed
a major or a minor crime; and the other he explicitly pronounces, as
we learn from our official documents, guilty of misprision of treason,
at all events a bailable offence. He says, “from the documents in my
possession and the several communications, verbal as well as written,
from the said Dr. Erick Bollman, on this subject, I feel no hesitation in
declaring, under the solemn obligation of an oath, that he has committed
misprision of treason against the United States.” Surely it is desirable
to provide against the recurrence of scenes of this description. Or shall
it be admitted that the whim, the caprice, the passion, or the ambition
of a martial chief, may supersede at will the most important checks and
safeguards of the constitution?
Mr. J. RANDOLPH introduced his speech in favor of the resolution by
observing, that he understood the question before the House to be,
whether they would refer to a Committee of the Whole a motion proposing
an inquiry whether further legal provision be not necessary to prevent
violations of the writ of habeas corpus.
How long it had been the fashion to debate the merits of a subject on a
simple motion to commit, it was not material to inquire. He believed it
had commenced the present session.
Mr. R. then observed that he would proceed to answer some objections
which had been yesterday offered against the resolution, and state the
reasons which induced him to support it, come from whence it may. The
first objection which he heard was, the quarter whence the resolution
came. Permit me, said Mr. R., to remind the House that if those who have
been called into public life on account of their professed attachment to
correct principles, ever quit the ground of trial by jury, the liberty of
the press, and the subordination of the military to the civil authority,
they must expect that their enemies will perceive the desertion and
avail themselves of the advantage. Can they who thus desert their old
principles blame others for assuming the popular ground, which they have
abandoned? Whoever stands forward in defence of the constitution, and the
rights of the people, shall have my support _quo ad hoc_.
We have now on our tables official information from the President of the
United States, that the privilege of the writ of habeas corpus has been
denied and the constitution violated. And will you attend to reports from
your Committees of Claims, of Commerce and Manufactures, of Ways and
Means, and leave the constitution and the rights of the people to shift
for themselves? There is abundant time. Congress can meet again after the
fourth of March, and to postpone or delay a subject which affects the
vitals of the State on account of a press of private or local business,
would be a dereliction of our duty and of our oaths. Away then with such
objections.
As to the objection that the subject of habeas corpus is now, _sub
judice_, in the court below, no one thinks of a law which shall have
a retro-active operation. I trust in God that no such _ex post facto_
provision will be agreed to as was foisted into the bill which came from
the Senate, to suspend the habeas corpus, and which was intended in a
side way to cover with a mantle the most daring usurpation which ever
did, will, or can happen, in this or any country. There was exactly as
much right to shoot the persons in question as to do what has been done.
It has been contended that any measures on the part of this House will
give a bias to the proceedings which have been instituted in the courts.
Let me ask, what official notice we have of any such proceedings? But
disdaining such a shelter, though it has been resorted to on the other
side, it is sufficient to observe that a man has only to break the law or
constitution in the beginning of a session, and then forsooth you are to
be foreclosed from legislating on the subject, because an instance has
recently occurred to show the necessity of legislative provision.
Mr. R. said this was the first time in his life that he had heard it
asserted that no law ought to be passed to punish any offence, because
that offence had recently happened. He hoped he should never hear again
such a reason delivered. The Romans, believing the crime impossible, had
no law to punish parricide, till a case occurred, which proved their
mistake. What would you think of Cato or Cicero rising in the Senate of
Rome, and urging such a reason against a law for the punishment of this
crime?
In the discussion of this simple motion to refer the resolution to a
committee for inquiry, which I should have supposed would have been
carried without any objection at all, hints of indemnity, I suppose to
try the public pulse, have been thrown out. Permit me to say that bills
of indemnity are not known to the constitution. If the time ever arrives
when the representatives of the people vote the public money to indemnify
those who break the constitution, we shall indeed become _homines servile
paratos_, and fit for any Government and for any state of society,
however despotic or barbarous. If ever the minions of the Executive, or
the Legislature, whether civil or military, are indemnified for their
outrages out of the public Treasury, the constitution must have arrived
at its last crisis.
It has been insinuated that certain gentlemen in this House lean too much
towards standing armies, &c. Agreed. But in advocating an increase of the
public force, my object was to chastise an insolent foe, not to employ
it against our own citizens and to substitute it in lieu of the civil
authority. My dread of standing armies has been more than a hundred times
increased in consequence of the services to which our present little
force has been put. From such armies good Lord deliver us!
I hope the committee to whom this subject may be referred will not forget
to prevent a man from being embarked on board a shallop, and transported
one thousand or two thousand miles for trial. For I have heard a law
officer of the United States contend that a man may be arrested in one of
the territories, and a trial had in any part of the country, wheresoever
he may be brought. If this abominable doctrine be supported by law, it
is high time to correct it. The constitution, in an article amendatory,
declares that unusual punishments shall not be inflicted. Transportation,
even after conviction, is an unusual, cruel, and severe punishment; but
here it has been inflicted even before a conviction, and before any trial
of the delinquents.
The court of Orleans has the same power as the district court of
Kentucky, which is invested with the powers of a circuit court. If the
district court of Kentucky has jurisdiction of treason, which no man ever
doubted, it follows that the court of Orleans has the same authority.
When the constitution gave to Congress exclusive jurisdiction over a
district ten miles square, it filled the friends of liberty with alarm.
But no man then dreamed that this blot on the map, this nondescript
region, a King’s Bench was to be established for the trial of delinquents
against the Government, collected from all parts of the country. The
inhabitants of this miserable heath, men held in a state of bondage
to which no man would submit, who have no voice in electing rulers of
the country, are destitute of the right of self-government--these men
are made the judges and jurors to try the freemen of America. Were I
on trial, I would challenge the jury. They are not qualified for this
office; they are not my peers. The people here must be the tools and
expectants of ministerial favor. Let them move in their own humble
sphere, but let them never dare to touch a charge of treason.
In the Declaration of Independence, transportation for trial is alleged
as one of the grievances imposed by the British Government on the
colonies. Now it is done under the constitution, and under a republican
Administration, and men are transported without the color of law, nearly
as far as across the Atlantic.
I make no profession of sympathy for the men who have been denounced as
traitors. I argue on the supposition that they are traitors; there is no
need of much exertion in behalf of good men. Attacks on the liberty of
the people are, as has been stated before, made always in the persons of
the vile and the worthless. But when precedent is once established in the
case of bad men, who, like pioneers, go before to smooth the way, good
men tremble for their safety.
Mr. R. observed that he would not say much of the Commander-in-chief.
The least said, till they knew all, was the best. He had always thought
that there were more rogues than one. This business of canonizing and
sanctifying men before they are dead, he did not like. In the State of
Virginia they had been compelled to change the names of several counties.
There was a time in which the name of Arnold might have been preferred,
and perhaps there may now be places in the United States which derive
their names from Burr.
Mr. R. could not admit the jesuitical casuistry which had been displayed
with regard to an oath. If a man breaks the constitution, which they
were all sworn to support, punish him. If the violator be Washington,
Franklin, or Jefferson, Mr. R. would punish him, and he would also say,
that no indemnity ought to be voted for him.
Mr. R. stated at some length the circumstances of the proclamation issued
in England to prohibit the exportation of corn, when Chatham and Camden
were in the Ministry, and who afterwards refused a bill of indemnity.
Mr. R. observed that bills of indemnity were known to the English
Constitution, and requisite in the case stated. But Chatham and Camden,
though both the known and tried friends of liberty, here abandoned the
popular ground, and rested their defence on arbitrary principles, while
the wary Mansfield, an old tory and a high churchman, availed himself
of the advantage, took up the cudgels for the people, and completely
succeeded.
Mr. G. W. CAMPBELL said the first inquiry that naturally presents itself,
in discussing this subject, is, what has occasioned the measure to be
brought before the House at this time? This answer is given--the conduct
of General Wilkinson, in arresting Bollman and others, at New Orleans,
and transporting them to this place for trial, under military orders,
in violation of the constitution and laws of the Union. Suppose this
to be the case, what remedy can the Legislature apply? Does the evil
complained of arise from the want of laws to protect the liberty of the
individuals and punish those who violate it, or from those laws not being
duly obeyed? If the evil arises from a disobedience to existing laws,
no act passed by this House can afford a remedy. Those entrusted with
the execution of the laws may be stimulated to carry them into effect by
this transaction, and to punish the aggressors, but it is no ground upon
which this House can act, and no act that we could pass could, in any
degree, affect the measures that have already taken place. The principal
inquiry therefore appears to be, whether there is any law to punish the
commission of such crimes as General Wilkinson is charged with? There can
be no doubt on this subject; there are laws in every part of the Union to
punish offences. If those persons were seized and carried away without
legal authority, or a just cause that would excuse the act, it will be a
false imprisonment, including in it an assault and battery--an offence
punishable by law in every part of the United States. The offender may
be indicted, and, on conviction, fined and imprisoned according to the
nature of his offence. He may also be sued by the party injured, and
damages recovered in proportion to the injury sustained. This is the
remedy afforded by the law in such cases, and it has been considered
sufficient to correct the evil.
It has not been pretended that General Wilkinson, if he has acted in the
unwarrantable manner stated on this floor, cannot be punished according
to the nature of his offence; and it has already been stated that he is
liable, if guilty, to be punished by indictment, and be made to answer in
damages by civil suit. With regard to the violation of the constitution
said to have been committed by General Wilkinson, in not obeying the writ
of habeas corpus issued by the judge at Orleans, I may be permitted to
observe that this part of the subject does not appear to have been well
examined by those who have spoken in favor of the measure. The words
of the constitution on this subject are, art. 1. sec. 9: “The privilege
of the writ of habeas corpus shall not be suspended, unless when, in
cases of rebellion or invasion, the public safety may require it.” This
provision evidently relates to Congress, and was intended to prevent that
body from suspending, by law, the writ of habeas corpus, except in the
cases stated, and has no relation whatever to the act of an individual
in refusing to obey the writ--such refusal or disobedience would not
certainly suspend the privilege of that writ, and must be considered in
the same point of view as the violation of any other public law made to
protect the liberty of the citizen. In the present case, however, if
there was a refusal to obey this writ, it was a violation of an act of
Congress, establishing that part of Louisiana where this transaction took
place into a Territory, which expressly declares that the inhabitants of
the said Territory shall be entitled to the benefit of the writ of habeas
corpus, and it is punishable as such; but it cannot be considered a
breach of the constitution in any other respect than the violation of any
public law made in pursuance of that constitution would be, and of course
cannot require legislative interference. With regard to the other three
articles of the constitution, to wit: the 4th, 5th, and 6th amendments
thereto, said to have been violated by the conduct of Wilkinson, a very
brief examination will show that there are provisions by law in every
part of the Union to enforce obedience to those parts of the constitution
and punish those who violate them. The first of these articles merely
declares the right of the people to be secure in their persons, houses,
&c., against unreasonable searches, seizures, &c.; and that no warrant
shall issue, but upon probable cause, supported by oath or affirmation,
&c. The first part of this only can relate to the present case, for
it is not alleged that any warrant was issued; and every law existing
in society for punishing offences against the persons and property of
individuals, is calculated to enforce obedience to this provision. If
a man is seized without legal authority or a just cause, cannot the
offender be punished? He certainly can--and in what other way could
you enforce obedience to this provision? The other two articles before
mentioned can certainly have no bearing on the question before the House,
they merely relate to the manner in which, and the place where offenders
shall be tried--they are directory to the Legislature and to courts of
justice; and it is not stated that either the one or the other have acted
contrary to their provisions. No attempt to try these persons was made
by General Wilkinson; he sent them to this place, they were delivered
to the civil authority, and their case is now under legal adjudication.
The courts of justice are the proper tribunals to decide, according to
existing laws, where they are to be tried and in what manner. We are
told, however, sir, it is necessary to make provision by law to enforce
obedience to the writ of habeas corpus, to punish those who may refuse
to grant it. With regard to the latter case, there is not the least
ground of complaint--the writ has not been refused in any instance when
demanded. It was issued at New Orleans, and also at Charleston, and
indeed it is not pretended the civil authority have on any occasion
violated this writ. It has, on the contrary, yielded the most prompt
obedience to it in every instance.
If it was made to appear to me that there were not provisions, by
existing laws, to enforce obedience to the writ of habeas corpus, and
to punish the violations of it, I would be among the first to make such
provisions. But this has not been shown, and cannot, I presume, be
proved to be the case. In every State, and in every Territory, as far
as we are informed, there are laws to enforce obedience to this writ,
and to regulate the mode in which it shall be obtained and prosecuted;
and, by the thirty-fourth section of the act to establish the judicial
courts of the United States, it is declared that “the laws of the several
States, except when the constitution, treaties, or statutes of the United
States shall otherwise require or provide, shall be regarded as rules
of decision in trials at common law in the courts of the United States,
in all cases where they apply.” This provision must relate to criminal
as well as to civil cases. You have, therefore, the same provisions, at
least, to enforce obedience to the writ of habeas corpus in the courts
of the United States, that there are in the respective State courts;
and it has not been shown that these provisions are defective in the
State courts. Gentlemen have not pointed out an instance in which this
writ can be violated with impunity. In every case that can be stated,
the aggressor may be punished under existing laws; and that is the only
mode in which you can enforce obedience to this writ, or to any law.
You cannot prevent, absolutely, the commission of a crime; you can only
punish the offender, and thereby discourage others from committing
similar offences. You cannot prevent a man, while at liberty, from
exercising his physical strength; and you can no more prevent him, by
law, from violating the writ of habeas corpus, than you can prevent one
man from striking another, or from seizing him, and carrying him away by
force. All you can do, in either case, is to declare the punishment that
shall be inflicted on such offenders.
The gentleman from Vermont (Mr. ELLIOT) has told us he has not discovered
a tittle of evidence to show that the persons have committed treason, and
that their crime, at most, can only be misprision of treason. Although we
are given to understand that that gentleman is a professional character,
I must beg leave to differ with him on this subject. If treason has been
committed by the author of this conspiracy, those persons, if guilty of
any crime, must be guilty of treason, and not of misprision of treason
only. They aided and abetted in carrying into effect the project. They
carried and delivered a letter, knowing its contents, from the principal
conspirator to General Wilkinson, for the purpose of engaging him to join
in this undertaking. They used their influence to corrupt him. These must
be considered overt acts, giving aid and comfort to the enemies of the
nation, and will make them principals in the treason, if such a crime
has been committed; for, in this crime, there can be no accessories--all
who are concerned are principals. Misprision of treason is a distinct
and separate offence. It is merely the neglect or omission to make known
to the proper authority the treason that has come to the knowledge of
the party. It supposes that no act has been done by the party charged;
that he has given no aid or assistance whatever to the enemies of the
country, but has merely acted wrong, mistaken his duty (which is the
meaning of the term) in not discovering, in due time, the acts of treason
that have come to his knowledge, and is, on that account, guilty of
high misdemeanor. It was not, however, my wish, or intention to give
any opinion on the merits of this case. I am willing to leave it to the
decision of the constitutional tribunals. But, gentlemen seem as if
they were determined to discuss the guilt or innocence both of General
Wilkinson and the prisoners. This I consider altogether improper, as it
might give an undue bias to the public mind on this subject. For this
reason also, sir, I am opposed to referring the resolution to a select
committee.
Mr. HOLLAND.--It is said by gentlemen, that, by the conduct of General
Wilkinson in sending Bollman and others from Orleans to this city, there
is a flagrant violation of the constitution, and a crime committed
that should be punished as a felony, and the purpose of making an
offence of this kind a felony is the object of the present motion.
That these persons may have been deprived of certain rights secured by
the constitution is a possible and probable case; for every illegal
deprivation of right secured by law under the constitution, may be said
with equal propriety to be a violation of the constitution. But, sir, so
far as respects the habeas corpus, the suspension of it applies to the
Legislature, and not to persons. The constitution says it shall not be
suspended but in case of rebellion, or when the public safety requires
it. This prohibition manifestly applies to the Legislature, and not to
persons in their individual capacity. If, therefore, the Legislature
suspend the habeas corpus when there is no rebellion, or when the public
safety does not require it, they would be guilty of a violation of it.
But how has General Wilkinson violated it? He has no power to issue or
detain the writ. The issuing of the writ of habeas corpus is the duty of
your judges, and they have in all cases issued the writ. It was issued
in the present case at Orleans; and issued at this place in behalf
of these men. Your judges have at all times in this particular been
ready to do their duty. And if so, where is the necessity of coercing
them, as proposed, by fines and penalties? Sir, the necessity does not
exist. If General Wilkinson has disobeyed this mandatory writ, he stands
in contempt, and your judicial courts have already power to punish
contempts. If he has violated any law, he is liable to be punished. If
he has deprived any persons of their rights secured by the constitution
or by the law, he has done it upon his own responsibility. The laws are
ample, and will give redress for every injury. Let these persons bring
their actions, and if it should appear that they are innocent, and that
the General has wantonly deprived them of their rights, an honest jury
will give exemplary damages; but if on trial it should appear that they
were guilty persons, and that the public safety required their being
transmitted to this place, they will not, they ought not, recover a
single cent.