shape, and it is undoubtedly one to which no one would object, if brought
forward at a proper time, if there were not questions depending on which
it is calculated to operate, and if there existed the least probability
of any thing final being done upon it, before the close of the session.
The inquiry is proposed to be made by a select committee; the mover of
the resolution will of course, according to the mode of proceeding in
the House, be chairman of that committee, and the report will in all
probability be made at too late a period of the session, to admit of a
full discussion, and an effect be produced by the report very different
from that which would result from a full investigation of it. May not
its effect be, to cover a decision which the gentleman knows is about to
be made? To make it appear that those who make that decision have the
voice of the people with them? The first course proposed, of submitting
this proposition to a Committee of the Whole, had a tendency to produce
an immediate investigation of the subject; an agreement to the present
course will have the contrary effect, of delaying it. This proposition
really presents a strange appearance. Gentlemen, heretofore the vehement
advocates of energetic measures, are now converted into their opponents.
This, however, is not strange to an accurate observer of human nature;
opposition is opposition still, and let it come from what quarter it
may, the general clamor is a regard to the liberty and rights of the
citizen. But surely this of all species of protection is the strangest!
The protection of men engaged in violating the rights, the liberties,
and constitution of their country! Any judge, says the gentleman, who
shall dare to refuse to grant the writ of habeas corpus, or officer who
shall refuse to obey it, shall be mulcted in heavy damages. What does
this amount to? If any person shall even see treason committed before his
face, or Aaron Burr marching at the head of the marine corps, he shall
not dare to arrest them; but shall, in the first instance, go before a
judge, or render himself liable to be mulcted in heavy damages.
Mr. J. RANDOLPH.--Where are we? Are we in the Congress of the United
States? Is this the House of Representatives of this Union, and are we
to hear on this floor the doctrine advocated that a flagrant violation
of the constitution is to be remedied by an action of damages as in a
common assault and battery? Is it possible that such can be the idea of
this House; such our respect for the constitution, for the institutions
we are all sworn to support, and which, if we do not support, whether
our treason be committed under the banners of Aaron Burr, or under the
cover of law, we are equally traitors? Is this House ready to sanction
the doctrine that an open and avowed contempt of the civil by the
military authority, shall be considered as nothing more than a common
violation of law? A refusal to respect the writ of habeas corpus by a
civil officer, is a high misdemeanor. Much more is it a misdemeanor,
when committed by a military man, and more especially if committed by
the commander-in-chief of an army. With regard to plots and plotters,
conspiracies and conspirators, I am not their friend. If they exist,
I would deal with them according to law, I would give them sheer law;
they should have no more at my hands. Do gentlemen, however, pretend to
say that you can proceed against a man otherwise than according to law?
I stand here as the advocate of the law. Laying aside the question of
guilt, I say proceed according to law. If you do not do this, you may
first incarcerate a man, and afterwards summon a _venire_ to try whether
the act is justifiable. It is said dead men tell no tales. I will put a
case. I will suppose Aaron Burr a conspirator against the United States;
a traitor. Let him die. If so, I would hear the sentence pronounced with
pleasure.
But suppose another thing--suppose a conspiracy has been going on for
several years; suppose a person has been for several years concerned in
it, and to cover himself from suspicion he outherods Herod, and because
his weak nerves cannot endure the sight of a traitor stabs him. Is this
to be justified? It is well known that a conspiracy to separate Kentucky
from the Union is no new thing, and no zeal which any man concerned in it
may now manifest can throw off suspicion from his shoulders. These are
the plain facts.[49]
I will put another case. If a man charged with a crime committed in a
territory can be carried to a territory two thousand miles distant by
a military guard and there tried, what is the situation, Mr. Speaker,
in which you stand? You yourself may be arrested; for you are in a
territory, and the little remnant of the army here may be charged to
carry you to New Orleans. Your privilege will not extend to felony or to
a breach of the peace.
I will put another case. A member of this House may be carried to the
marine barracks. You may issue your writ, and your Sergeant-at-Arms
make return that the member is carried to Orleans; and as accidents
will happen, he may be knocked over by the boom, and there is an end of
him. Will you sit down contented with such a doctrine, that the civil
authority shall be put at defiance by the military, and the citizen
shipped off to New Orleans, there to be tried by a dependent tribunal?
I avoid saying any thing as to plots. I have no doubt, however, of this
plot, and I have no doubt of the existence of a plot also in 1788, and
down to the year 1795. But in what way has every free people become
slaves? The common recipe is--take a _quantum sufficit_ of plots and
of military force, always kept ready for the purpose, and the end is
accomplished; and I say this must, if you give sanction to such acts,
be the death of your Government. Has any revolution taken place in the
affairs of France, which was not preceded by a plot? Are we sure that
time and chance, which happen to all men and all nations, may not happen
to us?
One word on the subject of the quarter from which this motion comes.
An attempt is made to sound the tocsin, and to discipline the House under
the banners of party, on a constitutional question. Where the violation
of the constitution is not pretended to be denied, it is expected that
the House is to be rallied under the banners of party. The gentleman
who brings forward this proposition is charged with the sentiments he
entertained some years since; but it is the misfortune of this argument
that it cuts two ways; if you resort to the sedition law, the alien law,
and other acts of those days, you have no right to refuse gentlemen now
the benefit of their principles. The people of this country, after two
or three juggles of this kind, will be apt to conclude that federalism
or republicanism depends on being in or out of the Government; that
those who are in are good federalists, and those out republicans; they
will find this out, if they do not suspect it already. A few such
instances, and the scales will fall from their eyes. You quote the most
detestable instances of a violation of a law which have taken place in
time past--no, this is the most detestable of all--and yet you gravely
tell the people that you will not listen to men who advocate rights thus
infracted. The people of the United States will eventually listen to
them, if you pursue this course; and it is because I do not wish them
to listen to them, that I do not wish to see them foremost in such a
cause as this. It is a disgrace to the old republican party, if indeed
it is yet in existence, that the writ of habeas corpus should find its
first defenders in that quarter. There is on this subject one melancholy
fact, and that is--that in 1797 the federalists were in a majority; in
1807 the republicans are in a majority--has the generation of 1798 passed
away? No; the same people that were in 1798 federalists are in 1807
republicans, and that is the clue to the thing; all those who swim with
the tide come over to the stronger side.
In my mind it is high time to make a provision for a complete _casus
omissus_ of power delegated by the constitution. You have found members
this session voting to make a violation of a provision of the slave bill
death, on the broad principle of natural right; and yet would you do less
for a violation of the liberty of your citizens, when you are bound to
protect them, not only by natural right but by conventional institutions
and your oath? If a military man should take, I will not say a member
of this House--but any one of the miserable citizens who inhabit this
place--and escort him under military guard to New Orleans--I say the
military man who would do such a thing ought to be precipitated from
the top of the Capitol. I would teach the military that they are to be
subordinate to the civil power, and that if they undertake to violate
the civil institutions of their country, they should pay the penalty
of their lives. If you do not guard the people from such an excess of
military power, the time will come when you will be kicked out of doors
at the point of the bayonet. We have seen the Legislature of a nation
as enlightened as ours, treated in this way. There is one institution
on which I fear we have placed too great a reliance. I have been always
attached to the press, and desired to see it free and unfettered; and I
have gone uniformly with those who supported this opinion, even in the
time of alien and sedition bills, and not merely in a period of sunshine.
Experience has proved to us that the press in the hands of a tyrant may
become one of the firmest supports of his authority; and if there shall
be a collision between the press and the bayonet, it needs no prophetic
spirit to say which will kick the beam.
Mr. M. WILLIAMS said he would state one or two reasons why he should
vote for committing the resolution. As he understood the subject, the
only consideration at present was, whether it was necessary to make an
inquiry into the expediency of amending the laws on this subject. It had
been endeavored to make this a party question; he considered it of no
importance from what quarter a proposition came. If he thought it right,
he should vote for it. The gentleman from Tennessee has observed that the
constitution has made an ample provision on this subject. It appeared to
him that the constitution had only secured the writ of habeas corpus; no
penalty had been attached to its violation, and hence the necessity of
some legislative provision to answer this purpose. The same gentleman
has observed, that there is no necessity for legislative provision, as
the statute book is already crowded with cases; but, Mr. W. said, he
believed there was no legislative provision for the violation of the writ
under the authority of the United States. It had been also said, that a
provision under the Government of the United States would abridge the
rights of the States; but, Mr. W. said, he could not see how this remark
applied. He did not wish for any abridgment of those rights. The States
undoubtedly had a right to pass laws relative to the execution of the
writ within their jurisdiction, and Congress had a concurrent power to
regulate it under the jurisdiction of the United States. Mr. W. said, in
his mind many arguments had been urged which were irrelevant; such as
the conduct of the commandant at New Orleans, and of the persons brought
before the court. It had been said that this was an improper time to
bring the case before the Legislature; but, gentlemen would find that
new cases had very frequently given rise to new laws; and the present
case clearly showed the necessity of some new provisions. Whether the
persons implicated in this conspiracy had committed treason or not, was
not the inquiry; the only question was, whether any further legislative
provision was necessary to secure the writ of habeas corpus. He would
ask, whether in this instance the constitution had not been violated by
the interposition of the military authority? Whether the persons arrested
were guilty or not, was not for the House to say. Mr. W. said he did not
think that the reference of this resolution would have any influence on
the court; as an injury by the House would impose censure neither one way
nor the other.
TUESDAY, February 19.
_Writ of Habeas Corpus._
Mr. BIDWELL.--The motion, as now amended, embraces two objects: to
provide additional penalties for the security of the privilege of habeas
corpus, and to define the powers of the Supreme Court as to issuing
writs of habeas corpus. It is proposed to appoint a select committee to
inquire into the expediency of making these provisions. Each member of
this proposition is expressly predicated, by its mover, upon particular
recent occurrences; the one, upon the conduct of General Wilkinson, in
seizing certain persons at New Orleans, and sending them to the seat of
Government, under military arrest; the other, upon the late determination
of a majority of the Supreme Court to exercise jurisdiction in a case of
habeas corpus, for the discharge of some of those persons. With respect
to both of these objects, and also as it respects the propriety of
referring the question to a select committee, I am opposed to the motion,
and hope it will not be adopted.
But, sir, is it necessary or proper, if we had leisure, to pass a law
on the subject, at the present time? The principal argument in favor of
it has been drawn from the recent transactions at New Orleans. We have
been told that the constitution has been violated, and that Congress
ought to act on the occasion; otherwise, we may become familiarized to
encroachments on the constitution, until all respect for that sacred
instrument may be lost. Sir, this argument is a two-edged sword. It cuts
both ways. If, for a temporary purpose, the trumpet of alarm is sounded,
when there is no real danger; if, by way of appeal to the public, we
are urged to legislate upon a suggestion that the constitution has been
violated when there has been no such violation, or none but what the
ordinary course of law is competent to correct and redress; we may be
familiarized to charges of that nature, until we become insensible,
indifferent, and disinclined to interpose, when legislative interposition
may be really necessary.
For the sake of argument, let it be admitted that a constitutional right
has been infringed. Does it follow that Congress ought to legislate on
the occasion? Take the instance which, in order to bring the subject home
to ourselves, has been put. Suppose a member of this House, in contempt
of his constitutional exemption from arrest, except for treason, felony,
or breach of the peace, is arrested on civil process, and imprisoned
in this territory, or carried out of it, if you please, under arrest;
would Congress feel themselves called upon to pass a law, in consequence
of such infringement of a constitutional privilege? No, sir. The legal
remedies already provided would be sufficient. The party injured might
sue out a habeas corpus for his discharge, in the first place, and
afterwards commence his action for damages, to be assessed by a jury,
upon a full consideration of all the circumstances of aggravation or
alleviation; and the officer or person who did the injury would be still
further liable to be indicted by a grand jury and tried and punished by
the proper tribunal. These, sir, are the existing provisions of law.
And I am not willing to disparage the right of jury trial, so solemnly
recognized in the constitution, by treating it as inadequate to give
relief. It is a privilege by no means inferior to the habeas corpus. It
is one, indeed, without which that cannot be enforced. It is a legal
and constitutional remedy; and no friend to our laws and constitution
will attempt to degrade it. I am not pretending that it is perfect.
Imperfection is stamped upon every thing that is human. Courts and juries
are not infallible; they are not inaccessible to those passions and
prejudices which are common to men in all situations. But they are not
more liable to the influence of erroneous or improper considerations than
legislatures are. No safer institution than that of trial by court and
jury, has been devised to redress infractions of personal rights. It is
open to all persons who think they have sustained an injury, and is as
free from objection as the lot of humanity will admit.
Has any officer refused to serve a writ of habeas corpus? No such refusal
is pretended. Has any person, on whom a writ of habeas corpus, from a
court or judge of the United States, has been served, refused to obey
it? No instance of such disobedience has been officially communicated
to us, according to my understanding and recollection of the official
communications. It has, I am sensible, been charged upon General
Wilkinson, and, in proof of the charge, a gentleman from Vermont has
read, from a newspaper, that officer’s return to a writ granted by
the Territorial court of Orleans. For it is to be observed, that the
application was not made to the court of the United States there, but to
that of the Territory. The General’s return was expressed in the language
of a soldier, and not of a lawyer. It did not state, with technical
precision, whether Dr. Bollman was within his control at the service of
the writ. I may be incorrect, for I have not particularly investigated
the subject, and it may not be very material, but I understand the fact
to have been, that Dr. Bollman had been sent from New Orleans, on his way
to this city, when the writ was served on General Wilkinson. This appears
from the further proceedings of the court, as published in the same
paper, from which the first return has been read.
[Here a message from the President was received and read, after which Mr.
B. proceeded.]
When the message was announced, I was noticing an extract from the
proceedings of the Territorial court at New Orleans, which I now beg
leave to read.
“In the Superior Court of Orleans, December 26th. In the
matter of the _Habeas Corpus ad subjiciendum_, directed to
General Wilkinson, to produce the body of Dr. Erick Bollman;
on motion of Mr. Livingston (in behalf of Mr. Alexander, the
attorney upon record) that General Wilkinson be required to
make a further and more explicit return to the said habeas
corpus, or show cause to-morrow morning, at the opening of the
court, why an attachment should not issue against him: _It was
ordered_, that the rule be granted, and that a copy thereof be
immediately delivered by the sheriff to General Wilkinson. On
the next day, on motion of Mr. Duncan, in behalf of General
Wilkinson, and on reading the following, as an amended return
to the above-mentioned habeas corpus:
“The undersigned, commanding the Army of the United States,
takes on himself the 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. The body of the said
Erick Bollman is now, and was at the time of the writ of habeas
corpus, to which this return relates, out of the possession,
power, or custody of the undersigned.
‘JAS. WILKINSON.’
“_Ordered_, That the same be received and filed, and the rule
_nisi_ of attachment be discharged.”
The fact is here stated as I have understood it. Dr. Bollman was on
his passage to this place, before the writ of habeas corpus, sued out
by his friends, was served on General Wilkinson; whose transaction,
therefore, in whatever light it is to be viewed, in relation to the laws
and authorities of that Territory, was not a disobedience to this writ of
habeas corpus, but a military seizure and transmission of a person from
New Orleans to Washington, under an avowed responsibility, and upon the
principle that it was necessary for the public safety. At any rate it
does not appear to have resulted from a want of penalty, or any defect
whatever in the habeas corpus laws of that Territory, whose courts and
laws, and not those of the United States, were resorted to for relief.
One case has been mentioned in the newspapers, in which a writ of
habeas corpus, issued under the authority of the United States, was not
obeyed. An officer at Charleston, South Carolina, it is said, instead of
producing Dr. Bollman, in obedience to a writ from the district judge,
transmitted him to Washington, because the orders of General Wilkinson,
in general terms, directed his transmission, without any particular
instructions respecting a habeas corpus. The officer seems to have
considered it his duty to obey the orders of his commander, without
regard to any interfering lawyer or civil process. I am of opinion that
he erred, and has exposed himself to punishment, as well as to damages.
But his error does not appear to have been wilful, nor to have resulted
from any defect in the law, but from an erroneous military principle.
The same principle, however, has, at the present session, found very
respectable advocates on the floor of this House. Yes, sir, in the
case of Captain George Little, gentlemen held that a military or naval
officer is not bound to take notice of any law in opposition to, or even
in explanation of, the orders of his superior. It will be recollected
that I opposed that doctrine, although I admitted that an officer, civil
or military, acting contrary to law, through misapprehension of its
meaning in a doubtful case, or in some great emergency not provided for
by law, might be equitably entitled to indemnification. Damages had been
recovered against Captain Little, for doing an illegal act, in pursuance
of orders from the late President of the United States, and Congress have
passed a law to indemnify for those damages. The Executive orders, under
which he claimed, taken in connection with the law, which was referred
to in the orders, did not appear to me to warrant the transaction,
which has been adjudged to be illegal, and for which the damages were
recovered. I did not, therefore, vote with the majority in favor of his
claim. But gentlemen who supported it on the ground I have mentioned,
will, if they are consistent, be so far from inferring a necessity for
further penalties, from the case of Captain Kaltiesas at Charleston, that
they will be ready to grant him an indemnification, if he shall be found
to have acted honestly, according to his understanding of his orders.
By indemnification, I do not mean an act of indemnity, in the British
sense of the term, pleadable in bar both to an action for damages and
to a prosecution for an offence. Such an act might here be considered
unconstitutional and void. A remuneration for damages incurred has been
the mode of indemnification adopted by our Government.
On this subject an example has been quoted for our instruction, from
English history. It was a proclamation, issued in derogation of law, by
the King, with the advice of the celebrated Lords Chatham and Camden,
on a great national exigency. The measure was generally approved and
applauded throughout the nation. The Parliament were ready to sanction
it. But, instead of accepting an act of indemnity, those Ministers
undertook to justify it, as legal, upon the principle of necessity. In
that they erred. When the question came before the court for judicial
consideration, Lord Mansfield decided against the doctrine of his great
political rivals, and I think his decision was correct. As a judge or a
juror I should have condemned them. But, sir, if instead of justifying
the proclamation, as legalized by State necessity, the Ministers had
acknowledged their responsibility for it, and thrown themselves upon
the justice of their Government, had I been a member of the British
Parliament I would have voted them an indemnity. Their error consisted,
not in doing an illegal act for the public good, but in doing it under
color of legal authority, when the law did not authorize it. Whether
General Wilkinson’s conduct has been correct or erroneous in other
respects, he has not fallen into this error of those celebrated English
statesmen. He has not pretended that, in seizing the persons alluded
to and transmitting them to the seat of Government, he was justified
by orders or by law. He has not cast the responsibility upon any
other officer or department of Government. He has explicitly assumed
it all to himself, and put himself on the candor of his country for
indemnification. If it shall appear that he has acted honestly, for the
safety of the Army and the preservation of the Union, under the pressure
of such urgent necessity as he professes, I trust he will be indemnified.
On the contrary, if it shall turn out, upon future investigation, that
he has acted unnecessarily and wantonly, from motives of malice or
resentment, he will undoubtedly be left to suffer the consequences. I
give no opinion of the merits of his conduct. I hope the House will
not, at present, give an opinion, or adopt any measure calculated to
have a bearing on the question. It is premature. We have not sufficient
information. We have not a statement of all the facts, nor the evidence
in support of the facts, which are stated. In due time an inquiry will
be proper, and doubtless will be instituted. General Wilkinson will
probably demand it himself. But it would be unfair and unjust, as well as
impolitic, to anticipate it.
Mr. QUINCY.--So long as an intention appeared to make this a party
question, I had no inclination to intermeddle with it. The subject
seems to me to be of too high a nature, and too deeply to be connected
with the rights and liberties of us all, to be examined under those
narrow and temporary views which party spirit necessarily introduces.
Since the discussion has assumed a milder aspect, I shall offer a few
considerations; limiting myself to a very simple and brief elucidation of
the subject, in a point of view which no other gentleman has taken of it,
as yet, on this floor.
I cannot agree with those gentlemen who maintain that in the arrest and
transportation of Bollman and Swartwout, they can see no violation of
the rights of individuals. The privileges of the constitution are as
much the inheritance of the humblest and the most depraved, as of the
most elevated or virtuous citizen. To be seized by a military force,
to be concealed and hurried beyond the protection of the civil power,
and to be sent a thousand miles for trial, in a place where the crime
charged was not committed, I humbly conceive are violations of individual
rights, and of the constitution. I am not, however, prepared to say, that
in no possible case they can be pardoned; nor, with the gentleman from
Virginia, (Mr. RANDOLPH,) that in no case, I would consent to indemnify a
military commander for making such an arrest. A case might exist when it
might be the duty of a legislature thus to indemnify. I agree, however,
that it must be an extreme case, and that the party to be indemnified
must evince that he had himself no voluntary agency in producing the
state of things which made such an unconstitutional exercise of power
necessary to the safety of the State. I give no opinion concerning the
conduct of General Wilkinson. The events which happened at New Orleans
have no other relation to the subject before the House than this: they
have turned the attention of reflecting men in this nation to the nature
of the security they possess against similar violence; and, in common
with other reflecting men, it has become our duty not only to understand
the nature of that security, but also to supply, as soon as possible, any
deficiencies we may discover in it.
The only question is, Have this people the privilege of the writ
of habeas corpus secured to them as fully and effectually as the
constitution intended, and as wise and prudent men ought to desire? I
answer, unequivocally, they have not. So far as relates to cases under
the exclusive jurisdiction of the United States, we have virtually no
writ of habeas corpus. And for this plain reason, that we have none of
the sanctions of the writ; we have none of those penalties, without which
the writ of habeas corpus is a dead letter: particularly in all cases in
which the state of party passions, or of any predominant power, leads to
the oppression of an individual.
The writ of habeas corpus and the penalties by which it is enforced,
and in which the great benefit of the privilege consists, are distinct
things in their nature. The former was known to the English common law,
and although, at all periods of English history, it was held a very
precious right, yet were its provisions found wholly inefficacious
against arbitrary power, until after the statute of Charles II. called by
Englishmen their second Magna Charta. This statute gave penalties unknown
to the common law. If a judge refuses to grant, or an officer refuses
to execute the writ, he is liable to a penalty of five hundred pounds
sterling, and similar sanctions annexed to other neglects of the precept.
The House will observe, that all these penalties are securities given to
personal liberty, additional to those which exist at common law, and are
not substituted for them. These penalties are annexed for disobedience to
the writ, not as indemnification for the injury. All the other remedies
against the judge, or the party imprisoning, remain unimpaired.
The question recurs, does the Federal Constitution, by securing to
us “the privilege of the writ of habeas corpus,” secure to us those
sanctions of the writ which constitute in England its characteristic
security? If the constitution had re-enacted the statute of Charles,
there could be no doubt. But will gentlemen seriously assert, that a
penal statute of another country can, by construction, be declared the
law of this, so as to make our citizens obnoxious to its penalties?
If that statute be our national law, how was it obtained? Re-enacting
statute we have none. And “the United States, as a Federal Government,
have no common law,” if we give credit to declarations daily made upon
this floor, or respect the opinions of one of the highest law authorities
in this nation. I refer to the opinion of Judge Chase, in the case of the
United States against Worrall. 2 Dallas, 394.
This view of the subject is certainly sufficient to satisfy this House,
that their security for this great privilege is, at least, uncertain; and
is not this reason enough, for this Legislature to commence an inquiry
into the nature of that security, and the additional provisions it
requires? This at present is the only question.
But the gentlemen ask “What need of further penalties? If the judge
refuses the writ, is there not impeachment? Against the person illegally
imprisoning another, is not an action for damages?” I answer: Both
these securities for the personal liberty of the citizen existed, and
do still exist in England, as fully as they do here, yet was it ever
before heard that these were reasons against enacting that celebrated
statute of Charles, or were ever urged as evidence that its provisions
were needless, or useless? The penalties of that statute are guarantees
of the liberties of the citizen, additional to those which result from
the law and the constitution. The principle of that statute is, to rest
satisfied with nothing short of the actual liberation of the person
from illegal imprisonment, in the shortest time possible. To this end
all its provisions tend. It will not leave a citizen to languish in
prison, in expectation of the result of the slow progress of legislative
inquisition, or for the purpose of ultimately qualifying him to receive
a heavy compensation in damages. Impeachment is always a dubious, and
an action for false imprisonment often an inadequate security for
the observance of the writ of habeas corpus. Great violations of the
privilege of this writ can never happen, unless in times of great
violence. In such times, what hope of an impeachment against a judge who
abuses his authority in coincidence with the views of a prevailing party?
And as to damages, is personal liberty to be estimated by money? And if
it were, what certainty that the person guilty of the illegal arrest will
be competent to pay the damages recovered? In the case of seizure by a
military power, can it ever be expected, from the universal pecuniary
deficiencies of the soldiers, that damages will be realized, even should
the civil arm be competent to enforce an execution?
The penalties affixed by the statute of Charles, on the contrary, assure
the obedience of the courts and officers of justice, independent of all
party influences which may happen to prevail in the nation, and secure
personal liberty by pecuniary perils, suspended over the heads of men,
whose situation in society is such as, in general, makes the attainment
of the penalty certain, should it be incurred. Upon the whole, those
who oppose the present motion seem to me to be reduced to this dilemma;
either they must acknowledge that they are content that the citizens of
these United States should possess less security for their liberties than
the subjects of the law of England enjoy for theirs, or they are reduced
to the necessity of adopting the doctrine that the statute penalties of
another country may by construction become the laws of this nation; than
which, I can conceive nothing more monstrous or absurd.
In this discussion it has been my wish to avoid all notice of the party
and personal invectives which have been uttered. The question is too
important to be mingled with feelings and passions of these descriptions.
And the circumstances of the times and of the nation, seem to me to claim
from us a contempt for these local and ephemeral distinctions.
Mr. NEWTON.--I presume I may be permitted, notwithstanding the motion
has been tried, to go fully into the subject before the House. I hope
this House will not indefinitely postpone it. If ever there was a subject
within the attention of an enlightened Legislature, it is the subject
before us. Every subject that regards the liberty of the citizen should
be received with reverence and respect by the votaries of liberty. If we
can better the situation of the people of the United States, and keep
from them, under all circumstances, the hand of oppression, it is our
duty to do it, and to pay attention to whatever is likely to eventuate
in such an issue. I shall not consider this case as the basis of an
impeachment. The only true inquiry at present is, whether the writ of
habeas corpus is sufficiently fortified by legislative provisions? I will
not commit my understanding so far as to decide on the conduct of the
Commander-in-chief. If he has done wrong, let him be answerable to the
laws of his country; much less will I talk of indemnifying him. For this
reason, because the jury before which the case may come, may, under such
circumstances, have regard, not to his circumstances, but to the Treasury
of the United States.
My friend and colleague, from Virginia, has offered a most important
amendment to this resolution. The Supreme Court of the United States,
after having this all-important case for a long time under advisement,
and after an argument from the bar, are again afloat on the ocean of
uncertainty, have started some new doubts, and have asked the gentlemen
of the bar to come forward with a new argument. If this is the fact,
does it not show the necessity of our attending to the subject; and of
some new legislative provisions upon it? I am for defining the power of
our courts. I wish to understand the extent of their prerogatives; and
particularly whether they have appellate jurisdiction in criminal cases;
before whom criminals are to be brought; who are to grant writs of habeas
corpus, and admit to bail?
These are all considerations of importance, and constitute the reasons
which induce me to vote for referring this resolution to a select
committee. But, say gentlemen, we cannot mature this subject this
session. Perhaps so; but is this a sufficient reason for not commencing
the investigation, for comparing our ideas on the subject, and going
forward as far as we can in our progress towards a decision? I, for
one, shall always be in favor of an inquiry into subjects that have a
reference to personal liberty.
This subject has been spread over an immense extent of ground. The single
point, however, at issue, is, whether we will commit this resolution, in
order merely to obtain correct facts and information, which shall present
the subject in such a form as shall enable us to act understandingly upon
it. I am not at present in favor of acting definitively upon it; but
merely for inquiry. So circumstanced, I presume our proceedings cannot
injure any individuals implicated in this business, as nothing we can do
can have a retrospective effect. These are my reasons for voting in favor
of the present motion.
Mr. J. RANDOLPH.--There has been a dispute in the world from time
immemorial between wit and dullness--between imagination and judgment.
So we have been told, though some who cultivate the sceptical philosophy
dispute it. But this impression has been so long attempted to be made,
that there is not a precise or formal coxcomb that does not on the score
of dullness arrogate to himself judgment and profound wisdom. While I
am willing to allow that declamation, or the powers of an effervescent
imagination, are no evidences of wisdom, the House must admit that the
mere dullness of a special pleader without his accuracy does not imply
any pretensions to knowledge. The truth is, that on this as on other
subjects, it has been my misfortune to come to the House too unprepared.
I knew nothing of the subject until it was brought under discussion. I
got up yesterday, as I have to-day, to say what first came into my head,
and in this way I hope I shall be permitted to go on.
I consider the whole of this business as one of the most unfortunate
kind that could have happened to the United States. If we had acquired
Louisiana by force of arms or conquest, we could scarcely have inspired
the people of that country with greater indignation than by these
events--in which it is yet to be seen whether these people are at all
concerned; or whether they are not standing like sheep, suffering the
wolves to pass without disturbance--events which must sow the seeds
of lasting misfortune, unless healed by a timely interposition of the
Government. And nothing can have a more fatal effect than any thing done
by this House, or the other part of the Government, to sanction the
conduct of the Commander-in-chief, taking it to be such as is ascribed
to him. As a member of this House I am free to give my opinion of
what would restore peace to that country--though out of doors I might
not do it. The first step ought to be the immediate recall of every
man directly or indirectly concerned in this business. You can hardly
suppose, sir, that I look forward to be made their Governor, or desire
on my recommendation to introduce a friend to that place. But I have no
hesitation in saying that unless some such step be taken, the attachment
of that country to the United States is lost for ever. I would take
such a step boldly--I would know nothing of their little disputes; I
would act with the authority of a venerable parent, who, on returning
home, found his children by the ears. I would correct them all, I would
discountenance at once all such intrigues--I would recall every man
who has directly or indirectly participated, or is suspected of having
participated in them--I would, in short, rub out and begin again. It is
an extremely unfortunate thing that the people of New Orleans, for the
most part speaking the French language, a great part of them attached
to the Crown of Spain--transferred to the United States by an honorable
purchase--told they were about to taste the sweets of a Government of
laws--told that arbitrary notions and _lettres de cachet_ were to be
proscribed--that the constitution was not to be departed from, but
that they were to enjoy all the blessings of citizens of the United
States--it is extremely unfortunate that New Orleans should be the first
place in which a lesson of military despotism should be taught. I deem
it extremely unfortunate--it cannot tend to attach those people to the
United States; it will, however, have another tendency--it will prevent
every man of character from emigrating to that country, and instead
of mixing the Americans with the French, the latter will be kept as a
distinct class. For will any man, having the least regard to his rights,
go to a place where he will be seized by a military commandant? Suppose,
Mr. Speaker, such a thing had taken place in your country or mine. The
military would not at this period be before the court--the spirit of
the country would have long since settled the question. I recollect in
1798 or 1799, when the officers of the army were following their legal
avocation of enlisting recruits, such was the spirit of detestation
in which a standing army was held in my district, that these men were
obliged to break up and move off. That spirit would scarcely endure the
legal act of a man acting under legal authority, and yet we have now an
apology for men acting in direct contravention of legal authority. Will
any man point out a good cause for this change?
The writ of habeas corpus is the only writ sanctioned by the
constitution. It is guarded from every approach except by the two Houses
of Congress; and yet this writ, thus acknowledged, thus specially
designated, this second Magna Charta, as it has been called, is to be put
on the footing of a common trespass. Really, when a man tells me that
if imprisoned I may get damages, it requires no ghost to come and tell
us that this may be done even without the writ of habeas corpus. But
will gentlemen point to any legislative sanction by which the execution
of this writ is guarded? Perhaps action on the case might be sustained
for disobeying it; but suppose a judge should deny it. Impeach him, say
gentlemen. But will gentlemen rely on that? That affords no certain
punishment, and an uncertain punishment is inadequate. We want a certain
and adequate remedy.
I stated that I would make a military officer, acting under his own
responsibility, acting as commander-in-chief, punishable with death for
such an infraction. Did I, in saying so, also say that I would punish an
inferior officer with death? Will any man deny that a military character
arraying himself against the constitution of his country is worthy of
death? I say he is a traitor. A commander-in-chief of an army, who, on
his own responsibility, puts the constitution and laws of his country at
defiance, is a traitor; and, supposing the case stated at New Orleans
to be correctly stated, the Commander-in-chief is as much a traitor
as any other man concerned in the conspiracy. Who are these traitors?
Burr & Co. What are they about to do? To put down the civil authority
by military force; and is there any substantial difference whether the
civil authority is trampled under foot by Burr and his banditti, or by
a commander-in-chief and his regular army? I will go farther. Suppose
these measures for putting down Burr shall eventually prove to have been
measures for putting up somebody else, in what will these men differ?
In nothing. If the commander of an army, to give himself a false eclat,
shall trample the constitution under foot, shall go a certain length with
conspirators, and finding his ground no longer tenable, shall determine
to make up in zeal what he wanted in fidelity, he is guilty of treachery
to the constitution and laws--he is guilty of more--he is guilty of
violating the principle respected by knaves--the principle of fidelity to
each other.
The gentleman from Massachusetts (Mr. QUINCY) has stated the difference
that exists between the right of the writ of habeas corpus and the
remedy. He has correctly stated that it is not intended as a remedy--not
to allow an action for false imprisonment--but to prevent false
imprisonment, and therefore that it ought to be guarded by sanctions.
But the gentleman has omitted to mention one circumstance, which is,
that in England the writ of habeas corpus is secured by the sanction of
death. And is our attachment to liberty less than that of England? I say
that a Chief Justice of England for refusing to issue a writ of habeas
corpus, may be impeached, taken to Tower Hill and decollated. If there
had existed the privilege of the writ of habeas corpus in England at the
time of the impeachment of Strafford, could there have been a charge more
strong than a settled design to do away that privilege? In England also
it is guarded by the power of attainder. Thank God! we have not that
feature in our constitution. But if the same spirit pervades that country
now which once did, nothing would sooner pass a bill of attainder,
through the two Houses of Parliament, than a known and wanton invasion of
this privilege. But fortunately our constitution has denied to us this
power; and it is because we cannot pass bills of attainder, and because
judgments on impeachments do not affect the life, that it behooves us to
guard this important principle with some more solemn sanctions than it
now possesses.
Mr. J. CLAY said, before the question was taken, he would mention one or
two points that went to show the necessity of a reference. He understood
that one of the persons arrested by General Wilkinson had been landed
on an island near Charleston, and, on the issuing a writ, the officer
had refused to obey it. He would ask whether this was not a violation
of the writ of habeas corpus that required a remedy by law? Mr. C. said
he always viewed it as a matter of regret, that questions of this kind
should be taken up on party ground. He considered such a suggestion, on
the present occasion, as a mere trap to get a few votes. They were told
of the dark times when alien and sedition laws were passed. If, however,
under the alien law, men might be deported, gentlemen should recollect
that it was according to law--that there was an express statute that
justified the measure. Mr. C. said he considered the kidnapping alluded
to by gentlemen as a gross violation of the habeas corpus, and would
be glad to know whether sending a man to Baltimore from Orleans, was
not as gross a violation of principle as sending him from this place
to Orleans? Mr. C. concluded by observing that he considered it a very
unfortunate thing for any gentleman of talents to be educated at the bar.
So many distinctions were there taken, that a man of his plain mind could
scarcely see any thing. He should, however, adhere to the constitution,
and would ask whether a military arrest was not a gross violation of it;
and whether there ought not to be some exemplary punishment to guard
against it?
Mr. ELMER said he should vote for the postponement of the resolution. It
had been under discussion for three days, and he did not perceive they
were nearer a result than on the first day. Was it discreet to refer this
resolution to a select committee, when it was manifest they could not go
through the business without neglecting important business already before
them? He should also vote for the postponement, as, although three days
had been taken up in the discussion, he had not heard any one gentleman
urge a single reason to show the necessity of any additional provisions.
This very transaction, he believed, would ultimately turn out beneficial
to the United States, notwithstanding the arts of ambitious men. It would
display such a striking regard of the people to the government of their
choice, as to prevent any like attempts in future. Mr. E. said he did
not know whether General Wilkinson was a conspirator, but in this case
he did not see that the constitution had been so flagrantly violated.
Take the case of a conspiracy against the constitution, to level and
destroy the constitution altogether, and directed towards the garrison
which General Wilkinson commanded, in a remote part of the United
States, and distant from any strength to support him. If we consider
the question in this view, that the lives and property of the citizens
were at stake, and even the judges engaged with the conspirators, was it
improper to take up these men and send them to a place where they could
be impartially tried? Let gentlemen, said Mr. E., pass as sanguinary
laws as they please, if I considered the judges concerned, and were
satisfied there were conspirators within, I would arrest them, though
death were the consequence, and I am persuaded every officer faithful to
his trust, would do the same thing. I admit that in all cases, except
of the greatest emergency, the military ought to give way to the civil
power. With regard, however, to what gentlemen call the audacity of
sending these people here, in the face of the legislative body, I confess
I entertain a different opinion. In cases of military arrest, I am most
afraid of secrecy. Does not publicity, as far as it goes, show a good
conscience? Does it not show the wish of the Commander-in-chief that his
conduct should be examined in the face of the nation, conscious that, on
a full examination, he will appear to have acted as a good officer and
an honest man? As I have said before, I do not know that he is honest.
I know that he has been charged with being a conspirator, but on this
point we have no proof before us.
Mr. KELLY said, in order to obtain a right understanding of the subject,
it is necessary to inquire how this inestimable privilege was secured to
the subjects of Great Britain by Magna Charta, the great charter of their
privileges, which was extorted sword in hand by the Lords and Barons,
from King John at Runnymede, and how far the privilege thus secured, was
made more effectual by the statute of Charles II., which was called the
second great charter of their liberties. This writ of _habeas corpus ad
subjiciendum_, which was secured by this charter, became a writ of right,
not less secured to the subjects of that kingdom than the same is secured
to our citizens by our constitution.
We are informed by Sir William Blackstone, in his famous commentaries on
the English law, that the inestimable privilege of the writ of habeas
corpus was of early date in Great Britain, almost coëval with the first
rudiments of their constitution. The liberty of the subject could not
be abridged in any case without special permission of law, although
sometimes impaired by the usurpation of princes and the ferocity of
particular times. It was, however, established on the firmest basis by
the provisions of Magna Charta, and a long succession of statutes under
Edward III., and was recognized by the Crown in several after reigns.
And it will hardly be contended that this privilege is better secured
to the citizens of the United States by our constitution, than the same
was secured to the subjects of the British Crown by the provisions of
Magna Charta. Yet abuses had crept into daily practice in England, which
had in a great measure defeated this great constitutional remedy. The
flagrant abuse of power by the Crown, generally, produced a struggle
which discovered the exercise of that power to be contrary to law,
or restrained it for the future. An obscure individual gave birth to
the famous habeas corpus act in the reign of Charles II., which was
justly called another Magna Charta of the kingdom. Francis Jenkes was
committed by the Council Board for a turbulent speech made at a common
hall assembled at Guildhall, for the purpose of choosing officers. He
applied to the then Lord Chief Justice Kaimsford for a habeas corpus,
who alleged that he could not grant the writ in vacation. The friends
of the prisoner afterwards applied to the Lord Chancellor, who said the
king would not grant it without a petition; application was afterwards
made to the court of quarter sessions to have him bailed; the court said,
there was no such name in the calendar; upon application to the jailer,
he said he never returned any man committed by the Council Board. When a
copy of the commitment was obtained, the jailer evaded making proof of it
by going away, as was believed with the privity of the court; at length,
the commitment being established, the court doubted their power to act,
when the Lord Chief Justice and Lord Chancellor had refused, the court
took time to consider of the application until next term. A petition was
afterwards presented to the Lord Chancellor, who also took further time
to consider; at length the Lord Chief Justice, upon the matter being
suggested to the King, issued a habeas corpus, and the prisoner was
discharged. To prevent similar abuses in future was the famous habeas
corpus act passed, which regulated the mode of proceeding upon writs
of habeas corpus, and fully ensured its benefits and provisions to the
subject.
The question on indefinite postponement was then taken by yeas and nays,
and carried--yeas 60, nays 58.
FRIDAY, February 20.
_Lewis and Clarke._
The House resumed the consideration of the unfinished business of Monday
last, on the bill making compensation to Messrs. Lewis, Clarke, and their
companions.
The bill grants land warrants, which may be either located or received
at the land offices in payment of debts due there, at the rate of two
dollars per acre. The bill grants these persons 24,960 acres.
A motion was made by Mr. LYON to strike out so much as permits the
receipt of these warrants at the land offices in payment of debts. This
was opposed by Mr. ALSTON and supported by Messrs. TALLMADGE, J. CLAY,
QUINCY, COOK, LYON, ELY, and D. R. WILLIAMS. It was contended that double
pay was a liberal compensation, and that this grant was extravagant
and beyond all former precedent. It was equivalent to taking more than
$60,000 out of the Treasury, and might be perhaps three or four times
that sum, as the grantees might go over all the Western country and
locate their warrants on the best land, in 160 acre lots.
A motion to recommit the bill was made, and after considerable debate,
was carried--ayes 66.
WEDNESDAY, February 25.
_Post Roads._
On motion of Mr. THOMAS, the House proceeded to consider the Post Office
bill.
Mr. J. RANDOLPH observed that this was an extraordinary bill, and was
passing in an extraordinary manner. It gave New Hampshire, Massachusetts,
New York, and some other Northern States, a large number of post roads,
and not one to Virginia. It was not wonderful that this subject was
pressed on by certain gentlemen. If it would not be considered as too
alarming a proof of Virginia influence on this floor, he would propose a
new road from Prince Edward County, in the district which he represented,
to Petersburg. Mr. R. spoke at considerable length.
Mr. BLOUNT observed that many large counties in the Southern States had
no post roads, while scarcely a town in the Northern States was without
one.
Mr. QUINCY repelled the suggestion of partiality by recurring to
former laws and showing that the Southern States had been previously
accommodated better than the Northern States.
Mr. J. RANDOLPH said this was a new sort of political arithmetic.
The gentleman from Vermont (Mr. FISK) had said that three roads were
discontinued in that State, and four only established, so that the gain
was only one. In Virginia you discontinue four established roads, and
give us no new one, though we have claimed several. We must work negative
quantities; we are _minus_ four. He wished to know how the equation was
to be adjusted and managed. Mr. R. concluded a long speech by proposing
a new section which went to forbid the carriers of the mail deviating
from the old established routes, under penalty of twenty dollars for each
offence.
This motion was intended to coerce the mail carriers to go through
Colchester, and not through Occoquan, Virginia.
THURSDAY, February 26.
_Claim of M. Beaumarchais._
Mr. HOLMES, from the Committee of Claims, to whom was referred the
Message of the President of the United States, transmitting a memorial
of the French Minister, on the subject of the claim of Amelie Eugenie de
Beaumarchais, heir and representative of the late Caron de Beaumarchais,
made the following report:
This claim was presented to Congress at their last session
by the agent of the representative of the late Caron de
Beaumarchais, and a report was made thereon by the Committee
of Claims, which was not finally acted upon by the House.
The documents presented with that report, and the memorial
of the French Minister, transmitted with the President’s
Message, contain a full statement of all the material facts and
principles involved in the consideration of the case. As the
papers accompany the present report, your committee do not deem
it necessary to detail particularly the circumstances attending
the charge of one million of livres, made of the United States,
in their account with Caron de Beaumarchais, (which is the
foundation of the present application.) The claimants have
uniformly contested the correctness of this charge, declaring
that Mr. Beaumarchais has settled with the French Government
for the same, conformably to the tenor of his receipt. The
substance of this declaration is now confirmed by the French
Government, through their Minister, in the following words:
“That the million given on the 10th of June, 1776, to M. de
Beaumarchais, was employed in a secret service; that an account
of it has been rendered to the King, and approved by him; and
that it was not given on account of supplies furnished by the
said Beaumarchais to the United States.”
The source whence this declaration proceeds renders it
unnecessary to allude to any corroborative circumstances
in support of the fact; but, as questions of law may arise
in investigating the case, your committee think the course
most consistent with the principles of justice, to which
the United States have always adhered, would be to submit
the claim generally to the consideration of the Secretary of
State, with instructions to report to Congress at their next
session; that he might consult the Attorney-General upon any
questions of law arising in the course of the investigation,
and furnish Congress with any other information that would tend
to elucidate the subject. They therefore submit the following
resolution:
_Resolved_, That the Message of the President of the United
States, transmitting a memorial of the French Minister on the
subject of the claim of Amelie Eugenie de Beaumarchais, legal
representative of the late Caron de Beaumarchais, be referred
to the Secretary of State, and that he be directed to report
thereon to Congress at their next session.
The report was agreed to.
FRIDAY, February 27.
_Lewis and Clarke._
An engrossed bill making compensation to Messrs. LEWIS and CLARKE and
their companions, was read the third time, and on the question that the
said bill do pass, it was resolved in the affirmative--yeas 62, nays 23.
MONDAY, March 2.
_Public Lands._
The House proceeded to consider the bill sent from the Senate, entitled
“An act to prevent settlement being made on lands ceded to the United
States, until authorized by law,” together with a report of the Committee
on the Public Lands thereon.
Mr. QUINCY moved its indefinite postponement. He observed that the
provisions of the bill were highly important, and affected great
constitutional questions, which it was not possible for the House to do
justice to at so late a period of the session. The principle contained in
the first section was, that the rights of all persons shall be forfeited,
who shall undertake to settle on the public lands. This provision was
not against trespassers, but was obviously intended to destroy the
constitutional rights of those who had existing rights. The object of
the bill was to defeat these constitutional rights. He had another
objection to the bill. It went to forfeit the whole right to the land,
in violation of the constitution, which expressly declares that “no
attainder of treason shall work corruption of blood or forfeiture, except
during the life of the person attainted,”--and yet, under this law, it is
undertaken, without any crime, to forfeit the rights of the individual,
not only during his life, but likewise during that of his heirs. He had
another constitutional objection. The constitution says, “nothing in
this constitution shall be so construed as to prejudice the claims of
the United States, or of any particular State.” Among the rights derived
from the States, if the property has passed, is the right of possession.
This bill is therefore an invasion of the rights of the States. There is
another constitutional objection. The ninth article of the amendment to
the constitution provides that “in suits at common law, when the value
in controversy shall exceed twenty dollars, the right of trial by jury
shall be preserved.” Here the right is taken away in a question of the
highest magnitude to the individual. The object of this law is nothing
more or less than to build up the legislative power on the destruction
of that of the Judiciary. There was another objection. The constitution
says, “excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” Here is an extensive fine
imposed. Mr. Q. said it was impossible, in the time that remained, to
do justice to this subject--he therefore hoped it would be indefinitely
postponed.
Mr. GREGG said he had no intention, on a proposition to postpone, to go
into a discussion of the merits of the bill; but he believed an attention
to its provisions would obviate many of the objections raised against it.
He would not attempt to justify the bill in all its minutiæ. He hoped,
however, the gentleman would withdraw his motion; he would then have an
opportunity, when the bill was taken up, to offer such amendments as
might remove his objections. Mr. G. said he thought the propriety of such
a bill was justified by the necessity of the case. The simple question
was, whether the United States should derive any benefit from the public
lands, or whether they should be given up to intruders. It must be known
to every one that almost innumerable persons had settled down on the
public lands without meaning to pay for them. Their object was to settle
down on them for a while, to sell their improvements, and then make other
settlements. Hence the absolute necessity of making some provision on the
subject. Mr. G. said he had no particular part of the lands of the United
States in view--he took the subject upon general grounds. He believed the
intrusions were most numerous in the Indiana Territory; but there was no
district in which they had not been made to a considerable extent. He did
not pretend to say that this law was the best that could be passed on
the subject--they might not however be able to get one much better. When
taken up it would be in the power of gentlemen to offer such amendments
as they pleased.
Mr. OLIN said he hoped the gentleman from Massachusetts would not
withdraw his motion. He believed no man would charge him with a design to
cover certain fraudulent claims; but he trusted the principle contained
in this bill would not be sanctioned. They were not a judicial body; and
had not a right to take the ground assumed in the bill. They had formerly
had an attempt made upon them to sanction claims founded in fraud, and
he had voted against it. He should also vote against this bill; he would
never agree that men should be dispossessed of their property in such a
way.
Mr. HASTINGS spoke against the bill, and in favor of the indefinite
postponement.
Mr. N. WILLIAMS considered the bill so objectionable that he could not
vote for it; and as, from the short period of the session that remained,
it was impossible to give it a proper attention, he would vote for
the postponement. The first objection he should make to the bill was
this--that it destroyed that right hitherto considered sacred, the right
of asserting a claim to property--a right that was established and coëval
with the laws of the country. Nothing was better settled than that an
individual who claimed a right to a piece of property had a right to take
possession of it, and hold it till deprived by process of law. Here that
right is denied, and in the most exceptionable manner, by giving the
President the power of judging when the rights of the United States are
violated, and the power to dispossess by military force, before trial of
the case. Mr. W. said this appeared to him a principle too tyrannical for
them to adopt at the present day--to authorize the President to send a
military force to deprive a man of his property, without leaving him any
mode of trying his right. This was the very last act, which ought in no
case to be resorted to, till the civil laws had been found insufficient.
Mr. W. said he did not know that any such power had been ever exercised
in Great Britain, or in any other country where less freedom was enjoyed.
The military force ought only to be called out when the civil force was
insufficient. This was not the only objection he had to the bill. The
citizens were rendered liable by it to imprisonment and punishment,
without due course of law, notwithstanding all they had lately heard of
trial by jury, and the zeal manifested for it. More might be said, but
as the time of the House was precious, he would forbear adding any thing
further.
Mr. D. R. WILLIAMS hoped the motion would not prevail; and for the very
reasons urged by gentlemen. If the details are defective, let us get at
the bill--if the principle is defective, that indeed may be a reason for
postponement; but any defect in the detail may be corrected. Mr. W. said
he could not but congratulate gentlemen on their returning sensibility
for the constitution. When their feelings had been harrowed up on a
recent occasion, gentlemen had felt no sensibility for the constitution;
but when they come to the adoption of a bill, which went to affect
Yazooism, all their sensibility was roused. Against this different course
he protested. The gentleman from Massachusetts had observed there were
not many intruders on the public lands, but surely he could not have read
the papers even of his capital, or he must have recollected a proposition
made in them to raise and march ten thousand men to take possession of
the public lands. Would he in the face of such a fact say there was no
danger? But, say gentlemen, will you deprive individuals of their rights?
And what are they aiming at? Are they not endeavoring to deprive you of
your rights? The fact, however, is, if these people do not trespass on
the public lands they will not be affected by this law; and if they do,
they ought to be affected by it. As to the application of military force,
that is not a new principle; as, under the Administration of General
Washington, it was found necessary to vest the power.
Mr. QUINCY.--I did not mean to argue the details of the bill on this
question--I merely stated certain considerations to show that it was not
proper at this time to discuss the principles contained in the bill. And
I ask gentlemen, whether, from the temper which has been manifested,
and the importance of the subject, it is possible to get through the
bill during the present session? If gentlemen will sit still, and be
as callous as they were lately, it may perhaps be carried through this
session; but if it be properly discussed, it cannot. Gentlemen say we
have no sensibility to constitutional questions, except on this occasion.
On the subject, however, of Yazooism, I have not said a word. My remarks
were general. I placed that and all other claims on the footing of the
law. This bill applies to the whole of them.
The question was then taken by yeas and nays on the indefinite
postponement of the bill--yeas 43, nays 68.
Mr. QUINCY moved to strike out the following part of the first section of
the bill:
“Such offender or offenders shall forfeit all of his or their
right, title, and claim, if any he hath, or they have, of
whatsoever nature or kind the same shall or may be, to the
lands aforesaid, which he or they shall have taken possession
of, or settled, or caused to be occupied, taken possession
of, or settled, or which he or they shall have surveyed,
or attempted to survey, or caused to be surveyed, or the
boundaries thereof, he or they shall have designated, by
marking trees or otherwise.”
He said so far as this section went to provide against trespasses, it
was unnecessary; and so far as it went to operate against persons having
rights to land, it was unconstitutional. So far as respected the former,
the arm of the law was sufficiently strong, and they might be removed by
its ordinary process. It was not contended that this law was meant to
apply against them--it would be absurd to say so, when they alleged no
rights. The truth was, this was a general law, made to suit a particular
case. This had been acknowledged by the gentleman from Virginia. Mr. Q.
said he believed no man would contend, that were it not for that case,
such a law would pass. He believed making a general law for particular
cases, unusual and unconstitutional.
Mr. Q. here recapitulated the constitutional objections which he before
urged.
He observed that the gentleman from South Carolina had referred to a law
passed in the year 1799, which prevented any settlement within the Indian
boundaries. Could any gentleman compare the case with this? In that case
a treaty had been made between the United States and the Indians, one
of the provisions of which prevented any citizen from going within the
Indian boundary. Mr. Q. said he would use but one other argument, which
was, that this law would be a mere nullity. If individuals wished to try
their title, as soon as the military attempted to remove them, the courts
of justice would interfere; and this would decide the question of title
which gentlemen seem afraid to meet.
Mr. LYON supported the motion to strike out.
On which the question was taken by yeas and nays--yeas 35, nays 54.
Mr. QUINCY offered the following proviso to the first section:
“_Provided, also_, That nothing in this act shall prevent any
person claiming title to any such lands, under or by virtue of
an act or grant of any State, from peaceably entering thereon,
for the purpose of being enabled thereby to bring to a judicial
decision at law or in equity the validity of the title so
claimed.”
Mr. QUINCY said he made this motion, because he considered this section
no more nor less than levelled at the Judiciary of the United States; and
that his vote might be recorded, he would ask for the yeas and nays.
The question was then taken by yeas and nays on the proviso, and decided
in the negative--yeas 30, nays 64.
Mr. FISK said, that rather than have such a principle introduced into the
laws of the United States, as was contained in this bill, he would prefer
seeing all the Yazoo land sunk in the sea. He had no idea of seeing the
rights to property tried at the point of the bayonet. He had often heard
the Yazoo represented as a wicked business. He believed it was such; but
he had ever hoped that the Judiciary would not be affected by it. This
was nothing more nor less than providing by an armed force to turn men
off from the land they occupy, and to deprive them of their rights, if
they had any. If they had no rights, it was unnecessary to introduce such
a principle into the bill; and if they had, they were to be divested of
them by an armed force, without a trial by jury. He would ask if this
were constitutional? He would ask gentlemen where were the feelings which
they had recently displayed for the rights of the people who had sent
them here? He wished gentlemen to recollect the maxim they laid down,
that it was immaterial who were the persons affected, the rights were the
same, and their invasion as dangerous in the person of the lowest wretch
as in that of the most exalted character. Mr. F. said he was decidedly
against the bill, and should vote for its rejection.
The bill was immediately read the third time.
Mr. LYON spoke against its passage.
When the question was taken on its passage by yeas and nays, and decided
in the affirmative--yeas 57, nays 44.
TUESDAY, March 3.
The bill sent from the Senate, entitled “An act confirming claims to land
in the district of Vincennes,” together with the amendments agreed to
yesterday, were read the third time, and passed.
Mr. SAMUEL SMITH presented to the House a petition of sundry inhabitants
of the State of Pennsylvania, praying an amendment to the second section
of the third article of the Constitution of the United States, which
extends the judicial power of the United States “to controversies between
citizens of different States, between citizens of the same State claiming
lands under grants of different States, and between a State or the
citizens thereof and foreign States, citizens, or subjects.”--Laid on the
table.
The further consideration of the bill sent from the Senate, entitled
“An act to explain the act, entitled ‘An act supplementary to an act,
entitled “An act to divide the territory of the United States north-west
of the river Ohio into two separate Governments,”’” was postponed
indefinitely.
The House resolved itself into a Committee of the Whole on the bill in
addition to an act, entitled “An act in addition to an act, entitled ‘An
act supplementary to the act providing for a Naval Peace Establishment,
and for other purposes.’” The bill was reported with an amendment
thereto; which was read, and agreed to by the House.
_Eodem Die, half past 6 o’clock._
A message from the Senate informed the House that the Senate have passed
a bill, entitled “An act repealing the acts laying duties on salt, and
continuing in force, for a further time, the first section of the act,
entitled ‘An act further to protect the commerce and seamen of the United
States against the Barbary Powers,’” with an amendment; to which they
desire the concurrence of this House.
_Ordered_, That the farther consideration of the bill for the relief of
Edward Weld and Samuel Bebee be postponed indefinitely.
The House proceeded to consider the amendment proposed by the Senate to
the bill, entitled “An act repealing the acts laying duties on salt, and
continuing in force, for a further time, the first section of the act,
entitled ‘An act further to protect the commerce and seamen of the United
States against the Barbary Powers;’” and the same being again twice read,
was, on the question put thereupon, agreed to by the House.
An engrossed bill making compensation for extra services to the Governor,
Judges, and Secretary of the Indiana Territory, was read the third time,
and passed.
_Resolved_, That the Clerk of the House of Representatives be directed,
within one month after the close of the present session of Congress, to
advertise three weeks successively, in two newspapers, printed in the
District of Columbia, that he is ready to receive separate proposals for
supplying the House of Representatives, for the next Congress, with the
necessary stationery, printing, and wood for fuel, in manner prescribed
by two resolutions, passed by the House of Representatives, the first on
the twenty-eighth of February, one thousand eight hundred and five, and
the other on the twenty-first of April, one thousand eight hundred and
six.
_Thanks to the Speaker, and Adjournment._
On motion of Mr. GREGG, it was resolved unanimously, that the thanks
of this House be presented to NATHANIEL MACON, in testimony of their
approbation of his conduct in the discharge of the arduous and important
duties assigned to him whilst in the Chair: Whereupon,
Mr. SPEAKER made his acknowledgments to the House, in manner following:
“_Gentlemen_: It has been my constant endeavor to perform
faithfully the promise made to you two years ago, to discharge
the trust reposed in me with industry and fidelity. For the
resolution which you have this minute passed, I earnestly beg
of you to accept my sincere thanks; permit me also to assure
you, that it will be always remembered with gratitude. I wish
you safe home, and a happy meeting with your friends.”
Mr. VARNUM, from the committee appointed on the part of this House,
jointly with the committee appointed on the part of the Senate, to wait
on the President of the United States, and notify him of the proposed
recess of Congress, reported that the committee had performed that
service, and that the President signified to them he had no farther
communication to make during the present session.
_Ordered_, That a message he sent to the Senate to inform them that
this House, having completed the business before them, are now about to
adjourn without day; and that the Clerk of this House do go with the said
message. The Clerk accordingly went with the said message; and, being
returned, Mr. SPEAKER adjourned the House _sine die_.