NINTH CONGRESS.—SECOND SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. (continued 2)

Let us turn over a leaf, and see how the Government stands. If the person accused is legally committed, or if it shall be proved that he has committed any offence, the judge will say that he shall not be released. If he has committed an offence, there can be no grounds for this suspicion, because, without such suspension, he will not be discharged, because it does not follow that, inasmuch as a man has a right to demand that he be brought before a judge by a writ of habeas corpus, he shall therefore be discharged. He is only bound to examine him, and if he finds there is strong reason to believe he has committed a crime, he may remand him to confinement.

This is a writ of right, which ought to exist under all governments on earth. What right? The right of being examined by the tribunals of his country, to determine whether there is any ground for the deprivation of his liberty. Is this a right which ought to be suspended merely to gratify the apprehensions of gentlemen? I think not. The framers of the constitution have said: “the privilege of the writ of habeas corpus shall not be suspended, except when, in cases of invasion or rebellion, the public safety shall require it.” Well, but, says the gentleman from Massachusetts, can any one deny that this is a rebellion? It may perhaps be, but I think it does not deserve the name of a rebellion; it is a little, petty, trifling, contemptible thing, led on by a desperate man, at the head of a few desperate followers: a thing which might have been dangerous, if the virtue of the people had not arrested and destroyed it. But admit that it is a rebellion; will every rebellion justify a suspension of the writ of habeas corpus? The constitution says: “the privilege of the writ of habeas corpus shall not be suspended, except when, in cases of invasion or rebellion, the public safety shall require it.” Does, then, the public safety require this suspension? Does the constitution justify it? And, under present circumstances, confining a man in prison without a cause. There is no danger, the enemy is not at our door; there is no invasion; and yet we are called upon to suspend the writ of habeas corpus. This precedent, let me tell gentlemen, may be a ruinous, may be a most damnable precedent—a precedent which, hereafter, may be most flagrantly abused. The Executive may wish to make use of more energetic measures than the established laws of the land enable him to do; he will resort to this as a precedent, and this important privilege will be suspended at the smallest appearance of danger. The effect will be, that whenever a man is at the head of our affairs, who wishes to oppress or wreak his vengeance on those who are opposed to him, he will fly to this as a precedent; it will truly be a precedent fraught with the greatest danger; a precedent which ought not to be set, except in a case of the greatest necessity; indeed, I can hardly contemplate a case in which, in my opinion, it can be necessary.

In my opinion, this is a measure which ought never to be proposed, unless when the country is so corrupt that we cannot even trust the judges themselves. This, I consider the cause of the frequent suspension of this privilege in England. Whenever the whole mass of society becomes contaminated, and the officers of the judicial court are so far corrupted as to countenance rebellion, and release rebels from their confinement, it may be then time to say, they shall no longer remain in your hands; we will take them from you. But I apprehend there is no such danger here, and I repeat it, we are at once creating one of the most dangerous precedents, and passing one of the most unjust acts that was ever proposed.

Mr. Sloan.—At the same time that I express my purpose to vote on the same side with the gentleman from Maryland, I shall take the liberty of assigning very different reasons for my vote from those offered by him. The gentleman from Virginia has mentioned two preceding insurrections, which he considers of much greater magnitude than this. I am of a different opinion. Compared to this, I consider them as only a drop to the bucket. For a moment, let me ask the attention of gentlemen to those insurrections, or as I think they might, with more correctness, be termed, oppositions to Government. In consequence of certain citizens thinking themselves aggrieved by certain acts, in which they have been, in some measure, justified by their subsequent repeal, a handful of people raised in opposition to their execution. What analogy do those oppositions bear to this rebellion? I consider the late or present conspiracy to be of greater magnitude than any we know of in history. Under what authority has it been created? Under that of a man of great abilities and experience, who states that he expects encouragement from foreign nations. I do not pretend to say that this is a fact; but what has he done? Has he not drawn resources from every part of the Union? I, therefore, consider it of great magnitude, and it is certainly excited against the best government on earth, under which the people enjoy the greatest happiness. I shall, however, vote against the bill, under the belief that we may confidently rely on the love and affection of the people for their Government, to which we are already probably indebted for its suppression. Had this measure been brought forward a month or six weeks ago, I should have voted for it.

Mr. Bidwell said, although he was not satisfied of the necessity of passing this bill, he was not prepared to reject it, in its present stage. As it had received the sanction of the Senate, he was disposed to treat it as a subject worthy of discussion and deliberation, by referring it in the usual course, to a Committee of the whole House. Before the passing of any bill of this nature, the House ought to have satisfactory proof that a rebellion in fact existed, (for there was no pretence of an invasion,) and that the public safety required a suspension of the privilege of habeas corpus. By the terms of the constitution, both of these pre-requisites must concur, to authorize the measure. The first inquiry would naturally turn upon the existence of a rebellion. On that point he had no doubt. To constitute a rebellion, in the sense of the constitution, he did not think it necessary that a battle should have been fought, or even a single gun fired. If troops were enlisted, assembled, organized, and armed, for the purpose of effecting a treasonable object, it amounted to actual rebellion. Such was the existing state of things. The public notoriety of the fact was, perhaps, sufficient evidence for the Legislature to act upon, if necessary; but they had also the official statement of the President to that effect. He had, therefore, no doubt of the existence of a rebellion, and that, too, of a more wanton and malignant character than any insurrection which had heretofore been raised against our Government; for it had not been occasioned by any grievances, real or imaginary, but must have originated in motives of personal ambition, or some more unworthy passion.

An existing rebellion, however, even of this aggravated description, was not alone sufficient to justify a suspension of the writ of habeas corpus. To bring it within constitutional justification, it must be required by the public safety. That was a matter of opinion, rather than of fact. He was convinced that the proposed suspension was not requisite for the purpose of suppressing the conspiracy; for by the vigilance and energy of our Executive Government, seconded and supported by the exertions of particular States and Territories, and the army, this deep laid conspiracy was already in a good measure suppressed, and he trusted the means now in operation would complete the suppression. A suspension of the habeas corpus could not be necessary, except for the detection and conviction of the conspirators. A thorough investigation ought undoubtedly to be made. If any persons concerned in the conspiracy were arrested in situations which precluded an immediate production of such evidence as would warrant their confinement, justice would require that they should be detained until the proper evidence could be procured; but in the mean time they might be discharged by virtue of a habeas corpus; for, though he agreed with the gentleman from Maryland, (Mr. Nelson,) in the importance and utility of this writ, he could not subscribe to the doctrine which he understood that gentleman to maintain, that it would entitle a person to a discharge only for causes of irregularity in the arrest. Want of legal evidence to show, by oath or affirmation, probable cause for detention, would be a ground of discharge. In ordinary cases, indeed, the release and escape of a guilty person, for such want of evidence, was esteemed a smaller evil than a denial of the common privilege. If it were so in respect to this conspiracy, there was, in his opinion, no good reason for passing this bill. That was a point which appeared to him worthy of some deliberation.

It had been mentioned in the debate, that in the whole history of our Government, notwithstanding two insurrections, the habeas corpus had, in no instance, been suspended. It was true. But an instance had been cited from one of the States. During the insurrection in Massachusetts there was such a suspension, in pursuance of a constitutional provision; and it was generally acknowledged to have been a necessary and salutary measure. He had never understood that it was abused, or that it was considered by the people of that State, a dangerous example. It was justified by the occasion. But it did not, therefore, follow, that a similar suspension would be justifiable on this occasion. That must depend on the present state and circumstances of the nation. Although a rebellion existed, he was not satisfied that the public safety required so strong and severe a measure. But, as it was an important question, on which the House had not yet taken time to deliberate, he was willing that the bill should go, according to the usual course of proceeding, to a Committee of the Whole; and therefore, he should not give his vote for rejecting it in the present state.

Mr. J. Randolph.—I shall give my vote in a very different manner from the gentleman who has just sat down. I was extremely happy to witness the very prompt and decided opposition this measure received in the House, and from the quarter whence that opposition originated; and I subscribe with great pleasure to the sound constitutional doctrine, which the gentleman from Pennsylvania advanced this morning before our doors were opened. We are now told that to reject this bill at its first reading, will be to depart from the usual course of proceeding in this House, and an attempt is made to enlist the feelings of members so far at least as to permit the bill to progress one step farther, that we may avoid violating that decorum which ought to be observed between the two Houses. I do not, however, consider the subject in this light. I conceive, on the contrary, it is as competent to us to reject the bill on its first as on any other reading. I well recollect that about eight years ago an important bill was smuggled through the House by this fastidious mode of proceeding. Gentlemen were allured from their honest opinions, and finally, by finesse and management, the bill was carried through the House. I understand that this course is pursued by the other branch of the Legislature on bills carried from this House; and I believe it will be found that with regard to the passage of bills between the two Houses, the course of procedure on the part of this House is more liberal than that pursued by the other. For I do not recollect a single instance in which the vote of a single member can stop the passage of a bill in this House received from the other branch of the Legislature. I, therefore, feel no scruples on this score. I think it just as well to say, that we will permit this bill to pass to a second or third reading, as to say that though we are opposed to the principle contained in a resolution which may originate in this House, we nevertheless permit a committee to bring in a bill to carry it into effect, because we may destroy the bill at its last stage. This appears to be a strange course of reasoning. It is like permitting yourselves to be bound in chains that you may be loosed again, or going into prison that you may afterwards come out. Gentlemen talk of the propriety of discussing this subject, but when a subject is so clear that every man has made up his mind upon it, where is the need of discussion? If it is not so clear, will any gentleman say that the discussion now had, in which every member has a right to speak twice, which is once more in my opinion than is necessary, will not be sufficient to develope all the merits and demerits of the bill? Will gentlemen undertake to say, if every member shall give the mature, or as it may be, crude suggestions of his mind, that the subject will not be sufficiently discussed, and lead to the formation of a correct judgment? I believe it will. And therefore, on this ground, a bill may as well be decided in its present stage as before a Committee of the Whole.

Some gentlemen, to whom I have listened with considerable gratification, tell us that, out of respect to the other branch, we ought not at this time to reject the bill. I, however, feel no such respect on this occasion, and shall express none. On the contrary, I am free to declare, that when a measure, tending to impose a burden on the people, or to detract from the privileges of the citizen, comes from that quarter, I shall always view it with jealousy. The inequality of the representation in that branch, the long tenure of office, and the custom with which they are so familiar of conducting their proceedings in conclave, (the House will recollect how long it was after the adoption of the constitution before the public could get admission into their twopenny gallery,) render all their proceedings touching the public burdens, or the liberties of the people, highly suspicious. And to say the truth, I am not at all surprised that they did close their doors on this occasion, that they might not be under the inspection of the public eye, while they were passing the bill on the table. I say so, because I am willing to abide by the good old principle of judging all men by myself; and if I had introduced such a bill, I should have been glad, my name did not appear on the Journals, that the public might not know to whom they were indebted for such a precedent.

I have another objection to the bill, besides that of the quarter from which it originated, or the manner in which it has been presented to the House. It appears to my mind like an oblique attempt to cover a certain departure from an established law of the land, and a certain violation of the Constitution of the United States, which we are told have been committed in this country. Sir, recollect that Congress met on the first of December, that the President had information of the incipient stage of this conspiracy about the last of September—that the proclamation issued before Congress met, and yet that no suggestion, either from the Executive or from either branch of the Legislature, has transpired touching the propriety of suspending the writ of habeas corpus until this violation has taken place. I will never agree in this side-way to cover up such a violation, by a proceeding highly dangerous to the liberty of the country, or to agree that this invaluable privilege shall be suspended, because it has been already violated, and suspended, too, after the cause, if any there was, for it has ceased to exist. No; I wish to be true to those principles which I have constantly maintained, and, God willing, ever will maintain so long as I have a seat on this floor, or have life. It has heretofore been the glory of those with whom I have acted, that in all our battles we have combated for the principles of the constitution and the laws of our country, in the persons of those in whom they have been attempted to be violated, however infamous and contemptible. When those principles were prostrated under the sedition law, what did we say? That the character of the man accused could not change the laws of the land, or impair his rights—that we would support the constitutional rights of the citizen, in the person of the meanest reptile, as well as in the persons of those who occupy the highest stations in society. We have done so—let us continue to do so, regardless of popular clamor or odium, and we shall still continue to find ourselves on true ground. We never inquired what kind of a man Callender was—we said, such is the law and the constitution; let justice take its course. I could quote other examples equally strong, but in deference to the feelings of the House I shall desist from doing it.

I beg pardon for detaining the House so long. I will, however, endeavor to express the remaining ideas I have to offer in a few words. There is another consideration which renders this bill highly objectionable. I consider the case as now at issue, whether the United States is under a military or civil government, or, in other words, whether the military government is subject to the civil power, or the civil authority to the military. I conceive that a case has occurred, in which the military has not only usurped the civil authority, but in which it has usurped nothing short of omnipotent power; and I consider this bill as calculated to give a softening and smoothing over to this usurpation; and on this ground I cannot assent to it. Suppose this bill either to pass or not to pass, what has been the practice under the constitution? By the expression, under the constitution, I do not mean conformably to it. Men have been taken up by a military tribunal, and have been transported contrary to law. I say transported, for if a man can be transported from the district where the offence with which he is charged was committed, he may also be deported to Cayenne, or transported to Botany Bay. And even you yourself, (addressing the Speaker,) if such acts be sanctioned by this bill, in your passage from this House to your lodgings, may be arrested, put on board a vessel and carried whithersoever the military authority may choose. To this I will never give my consent. It has been very well remarked by my colleague, that this is not the first case in which an insurrection has occurred in the United States, but that it is the first case in which an attempt has been made to suspend the precious privilege of the writ of habeas corpus.

I put it to any man, whether, now that we have received information of the extent of this conspiracy, and when we find that Catiline, Cethegus, and Lentulus, have not as many brother conspirators as themselves, this conspiracy is equal to that in Pennsylvania in 1794 or 1795? In physical force it is not comparable to it, however in intellectual talent it may be. I conceive then that according to the Constitution of the United States, there is but one case in which the writ of habeas corpus can be suspended, and I should not go into this view of the subject, if it had not been misstated by all those who have preceded me in the debate. My view of the subject is this—that this privilege can only be suspended in cases in which not merely the public safety requires it, but that the case of the public safety requiring it, must be united with actual invasion or actual rebellion. Now, with whatever epithets gentlemen may dignify this conspiracy, I am not even of the opinion of the gentleman from Maryland (Mr. R. Nelson)—I think it nothing more nor less than an intrigue—and I am happy that I can declare on the honor, not of a soldier, but of a citizen, that I believe it to be a foreign intrigue, availing itself of domestic materials for answering its purposes, and poor indeed must be the soil of this, or of any other state of society, which would not furnish such materials.

A gentleman from Massachusetts has stated to the House that the organization and administration of the Government, at this time, forbids the apprehension of any abuse being made of the powers delegated under this law. Surely, sir, the gentleman could not mean to urge this as any thing new. He must have known, if he had consulted history—as doubtless he has—that the king de facto, and the administration de facto, are always above suspicion. That there never was a proposition brought forward, that did not find a majority ready to say, There is surely no danger of any improper use of this power in our time, for we are all honorable men, and we would not delegate it, if an improper use could be made of it; and that, if we reject a measure, we ought not to do it so much on account of ourselves, as on account of those who come after us. And what will those who come after us say of us? They will follow our example, and declare that the character of their forefathers was above every doubt and every suspicion. Now, for myself, I beg leave to be permitted to disclaim every argument of this kind. I do not, indeed, consider it fair to introduce such an argument. Let us take up the question on its own merits and demerits, without any allusion or reference to our own virtues, or the degeneracy of posterity. For myself, I have no hesitation in saying that I will not grant this power at any time, except under the most imperious necessity; and I say this without any disrespect to this honorable body, or to any of the public functionaries. Take man as he is, and in his best estate, you find him an animal prone to abuse and corruption. There does not exist a single constitution or law in the world, that does not enforce this salutary truth.

I shall consider this bill, if it passes, as establishing a new era in the Government. When I was a boy, I recollect to have consulted such chronological tables as I could get access to. I recollect to have read, that at a certain time, monarchy was abolished in Rome; a little while after, the first Dictator was named; then the second Dictator—and I believe, as in a case of apoplexy, she scarcely got over the third fit. I believe a suspension of the writ of habeas corpus might have, here, the same effect as the establishment of the first Dictatorship at Rome. In what situation would it place yourselves and the citizens of this country? It would leave them at the mercy, not merely of a justice of the peace, but at the mercy of every subaltern officer of the army and navy. I believe it would comport as much with the safety and interest of this confederacy to give us power to send these people off, as to put this power in their hands. I believe we should be as trustworthy as they. And, let me ask, what compensation to an innocent man, to a man of honor and feeling, to a man of character, who should be tied neck and heels and sent off to New Orleans, and who should ultimately be proved to be innocent—I ask what compensation it would be to him to bring an action of damages? Against whom? A man without visible property? And what action? An action on the most mercenary principle. To be indemnified in his fame by dollars and cents. The injury would be irreparable. At present, all stand under the law. If any one offend, let him be brought under it. But, in this way, to put a man in an oyster boat, or skipper, and transport him to a distance from the place of his arrest, and then say he shall have a remedy, in case of his innocence, against an inferior officer, is absurd. If we pass such a bill, which God forbid! it should contain a large appropriation, and Government should be obliged to make good the injured party—to afford him redress. I say they should grant a large appropriation, for it is not for men with epaulets and gold buttons to make reparation. If the bill passes, we are told it will be but temporary. Why, the Sedition law was but temporary; and I think, sir, (alluding to the Speaker,) you were one of those who aided its passage—much against your will—by being present at the altar when it was more than once re-enacted. As to its three months continuance, I consider that as one of the most objectionable features of the bill—as a bait to the trap; as the entering wedge. If it is made reconcilable to the interests and feelings of this House to pass it for three months, do you think we will then feel the same lively repugnance to it that we now do? No! It has been truly said, that no man became perfectly wicked at once; and it may be affirmed, with equal truth, that a nation is never enslaved at once. Men must be initiated by degrees, and their repugnance must be gradually overcome. Let me state a case. It is proposed to extend the time of service of the Executive Magistrate from four, to five, or eight years, or for life. If it be prolonged for a term, do you believe we shall stop at its expiration? No! Once extended for life, he will then claim the power to choose his successor, and the hereditary principle will follow. This is the old trick. Let me, however, tell gentlemen that old birds are not to be caught with chaff, though, unfortunately for them, the mass of mankind does not consist of old birds. Pass one other law, and I would quit the country. A twin brother to this same bill was introduced into the British Parliament in 1794; and that bill to prevent seditious assemblies, was brought forward for about as good reasons as this. According to it, if four or five persons assembled, and refused on the notice of a magistrate, to disperse, they were considered guilty of sedition, and were dispersed by force. These two bills form a complete tyranny—and tyranny of the most odious kind, because established under the mask of liberty. Was the tyranny of Robespierre less intolerable, oppressive, or odious, because inflicted in the name of the people, than a like tyranny in Turkey, under the Grand Seignor and his Muftis? Take one other thing along with you. These two fatal wounds, inflicted on the liberties of the English nation, were inflicted by the man who came forward in the character of a reformer—by the man who came forward as the advocate of a Parliamentary reform; from which circumstance he acquired that popularity which enabled him to inflict those deadly wounds on the liberty of his country.

Having said so much with regard to the principle, permit me to add one word on the details of the bill. There is a departure in it from the known, accustomed, and received language of the constitution, in the use of the word “authority.” The words are “warrant or authority.” The expression is, in my opinion, too lax. Perhaps, we may be told, that the bill may be amended on the third reading. But my objection to the principle contained in it is such, that I will not consent to carry to a third reading that which under no amendment can be rendered palatable to my taste. Mr. R. concluded by observing that he had so far exhausted himself that he was unable to go on.

Mr. Smilie.—I shall not detain the House long by the remarks which I propose to make on this subject. I shall waive all observations on the mode of proceeding on this occasion—whether we shall reject the bill on its first, or suffer it to go to a second reading. The question is now put, and I am called upon to give my vote, either in the affirmative or negative. I, therefore, feel under a necessity to put my negative upon it. I consider this one of the most important subjects upon which we have been called to act. It is a question which is neither more nor less than, whether we shall exercise the only power with which we are clothed, to repeal an important part of the constitution? It is in this case only, that we have power to repeal that instrument. A suspension of the privilege of the writ of habeas corpus is, in all respects, equivalent to repealing that essential part of the constitution which secures that principle which has been called, in the country where it originated, the “palladium of personal liberty.” If we recur to England, we shall find that the writ of habeas corpus in that country has been frequently suspended. But, under what circumstances? We find it was suspended in the year 1715, but what was the situation of the country at that time? It was invaded by the son of James II. There was a rebellion within the kingdom, and an army was organized. The same thing happened in the year 1745. On this occasion it was found necessary to suspend it. In latter times, when the Government had grown more corrupt, we have seen it suspended for an infinitely less cause. We have taken from the statute book of this country, this most valuable part of our constitution. The convention who framed that instrument, believing that there might be cases when it would be necessary to vest a discretionary power in the Executive, have constituted the Legislature the judges of this necessity, and the only question now to be determined is, Does this necessity exist? There must either be in the country a rebellion or an invasion, before such an act can be passed. I really doubt whether either of these exist. I really doubt whether a single law of the United States has been, as yet, violated. I will not say this is the fact; but I do not know any thing to prove the contrary. But, supposing that a rebellion does exist, we are then left at liberty to decide whether it is such a one as to endanger the peace of society to such a degree that no ordinary remedy will answer. If an ordinary remedy will not, it may be our duty to apply an extraordinary one. What is this mighty business? What is the opinion of the Executive as to its danger? Does he consider it dangerous? It is a little remarkable that, in every instance under the British Government, the proposition of such a measure originated with the Executive, while here, without any intimation of danger from the Executive, we propose, on our own suggestion, to suspend one of the most valuable privileges that is secured to the citizen. Let us attend to the communication of the President on this subject. He states that, according to his information, the persons concerned in the conspiracy depend on receiving two kinds of aid; foreign aid, and aid derived in their own country. After giving his opinion of the foreign aid expected, he says:

“On the whole, the fugitives from the Ohio, with their associates from Cumberland, or any other place in that quarter, cannot threaten serious danger to the city of New Orleans.”

The President declares that, in his opinion, there is no danger to be apprehended. With regard to foreign force, he states his reasons for thinking there is no danger. As the Message is in the hands of every gentleman, there can be no necessity for me to read it. But he explicitly declares, from the state of our relations with other nations, there can be no danger from that quarter. This being the deliberate opinion of the Executive Magistrate, who is more deeply responsible on this occasion than any other member of the Government, is it not most extraordinary that we should attempt to take steps which can only be justified in the last resort? Are gentlemen aware of the danger of this precedent? This is the first attempt ever made under the Government to suspend this law. If we suspend it when the Executive tells us there is no danger, on what occasion may it not be suspended? Let us suppose that it shall be suspended on this occasion, what will be its effect? Parties will probably for ever continue to exist in this country. Let us suppose a predominant party to conjure up a plot to avenge themselves. Do not gentlemen see that the personal liberty of all their enemies would be endangered? I mention this to forewarn gentlemen of the dangerous ground before them. I do not say that our country may not, at some future day, be in such a situation as to justify such a suspension, but I have never yet seen her in such a situation, and, at this moment, I think it does not exist. When we see the great body of the people so firmly attached to their Government, ought we to be thus alarmed on beholding a few desperate and unprincipled men attempting to stir up an insurrection? There is another consideration which will induce me to give my hearty negative to this bill. If foreign nations see that we are obliged, under such circumstances, to suspend the writ of habeas corpus, will it not show that the constitution is incapable of supporting itself, without the application of the most dangerous and extraordinary remedies?

Mr. Dana.—I understand that the question is, whether the bill shall be rejected on its first reading, without passing through the ordinary forms of proceeding. In such cases, the ordinary question is, Is there any thing in the bill proper for the House to deliberate upon? If they are of opinion that it can be modified in such a way as to ensure its passage, it ought to go to a Committee of the Whole. This was my opinion when the motion was first made to reject the bill. I was disposed to vote against the question, although the bill went to repeal the constitution. I have been accustomed to view the privilege of the writ of habeas corpus as the most glorious invention of man. I was notwithstanding, however, from a respect to the other branch of the Legislature, disposed to investigate the subject—to examine whether there was any necessity for it. As, on the one hand, I was inclined to believe that the judgment of the Senate had, on this occasion, been tinged by a strong abhorrence of rebellion; so I was willing, on the other, to take time to guard myself against an equally strong feeling of abhorrence of dictators. But, on one principle, I cannot agree to consider this bill as a proper subject of investigation, for one moment. I perceive, on further examination of the bill, that the Senate have provided for its suspension in cases where persons have been already presented. Had it been confined to future arrests, I might have agreed to deliberate on it, but viewing it in the light of an ex post facto law, I must give it my instantaneous negative. There is another principle which appears to me highly objectionable. It authorizes the arrest of persons, not merely by the President, or other high officers, but by any person acting under him. I imagine this to be wholly without precedent. If treason was marching to force us from our seats, I would not agree to do this. I would not agree thus to destroy the fundamental principles of the constitution, or to commit such an act, either of despotism or pusillanimity. Under this view of the subject, I am disposed to reject the bill, as containing a proposition on which I cannot deliberate.

The yeas and nays were then taken on the question, “Shall the bill be rejected?”—yeas 113, nays 19, as follows:

Yeas.—Willis Alston, jr., Isaac Anderson, David Bard, Joseph Barker, Burwell Bassett, George M. Bedinger, Silas Betton, William W. Bibb, Phanuel Bishop, John Blake, jr., Thomas Blount, James M. Broom, Robert Brown, John Boyle, William A. Burwell, William Butler, George W. Campbell, John Campbell, Martin Chittenden, John Claiborne, Joseph Clay, Matthew Clay, George Clinton, jr., Frederick Conrad, Orchard Cook, Leonard Covington, Samuel W. Dana, Ezra Darby, John Davenport, jr., John Dawson, Theodore Dwight, Peter Early, James Elliot, Caleb Ellis, Ebenezer Elmer, William Ely, John W. Eppes, William Findlay, James Fisk, John Fowler, James M. Garnett, Charles Goldsborough, Peterson Goodwyn, Edwin Gray, Andrew Gregg, Silas Halsey, John Hamilton, Seth Hastings, James Holland, David Holmes, David Hough, John G. Jackson, Walter Jones, James Kelly, Thomas Kenan, John Lambert, Joseph Lewis, jr., Henry W. Livingston, Edward Lloyd, Matthew Lyon, Duncan McFarland, Patrick Magruder, Robert Marion, William McCreery, David Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, John Morrow, Jonathan O. Mosely, Jeremiah Nelson, Roger Nelson, Thomas Newton, jr., Timothy Pitkin, jr., John Porter, John Pugh, Josiah Quincy, John Randolph, Thomas M. Randolph, John Rea of Pennsylvania, John Rhea of Tennessee, John Russell, Peter Sailly, Thomas Sammons, Martin G. Schuneman, Ebenezer Seaver, James Sloan, Dennis Smelt, John Smilie, John Smith, Samuel Smith, Richard Stanford, Joseph Stanton, William Stedman, Lewis B. Sturges, Samuel Taggart, Benjamin Tallmadge, Samuel Tenney, Philip R. Thompson, Thomas W. Thompson, Uri Tracy, Abram Trigg, Philip Van Cortlandt, Killian K. Van Rensselaer, Peleg Wadsworth, John Whitehill, Robert Whitehill, David R. Williams, Marmaduke Williams, Alexander Wilson, Joseph Winston, Richard Wynn, and Thomas Wynns.

Nays.—Evan Alexander, John Archer, Barnabas Bidwell, John Chandler, Richard Cutts, Elias Earle, Isaiah L. Green, William Helms, Josiah Masters, Gurdon S. Mumford, Gideon Olin, Thos. Sanford, Henry Southard, David Thomas, Joseph B. Varnum, Daniel C. Verplanck, Matthew Walton, Eliphalet Wickes, and Nathan Williams.

Monday, February 2.

Death of the Representative, Levi Casey, Esq.

Mr. Thomas Moore, a member of this House for the State of South Carolina, informed the House of the death of his colleague, General Levi Casey, late one of the members of the said State in this House: Whereupon,

Resolved, unanimously, That a committee be appointed to take order for superintending the funeral of General Levi Casey, late a Representative from the State of South Carolina.

Ordered, That Mr. Thomas Moore, Mr. Earle, Mr. D. R. Williams, Mr. Marion, Mr. Early, and Mr. Holland, be appointed a committee, pursuant to the said resolution.

Resolved, unanimously, That the members of this House will testify their respect for the memory of General Levi Casey, late one of their body, by wearing crape on the left arm for one month.

On motion of Mr. Holland,

Resolved, unanimously, That the members of this House will attend the funeral of the late General Levi Casey this day, at one o’clock.

Resolved, unanimously, That a message be sent to the Senate to notify them of the death of General Levi Casey, late a member of this House, and that his funeral will take place, this day, at one o’clock.

Thursday, February 5.

National Defence.

GUNBOATS.

The House resumed the consideration of the unfinished business of yesterday, being the report of a committee on fortifying our ports and harbors.

The question was taken on the amendment offered by Mr. Van Cortlandt, which was disagreed to—ayes 51, noes 54.

The question then recurred on filling the blank in the 2d resolution with “$250,000,” for building fifty gunboats.

Mr. Mumford.—I hope a majority of this House will agree to strike out the whole resolution respecting gunboats, with a view to appropriate that money to solid and durable fortifications. I was opposed to it in Committee of the Whole. I did then, and do now consider, that there is no necessity for any more gunboats. There are, in my opinion, a sufficient number already for the Southern sections of the Union, for which places they appear to be only adapted, except in a very few places to the North, where there is shoal water. They may answer a very good purpose in shoal water, but are inadequate for the defence of your ports and harbors to the north of the New Jersey shore; and I very much doubt, whether, in a gale of wind, they would not even sink at their mooring at the entrance of either of the harbors of Portsmouth, Salem, Plymouth, Newport, or New York.

It has been asserted that this was an electioneering scheme, and that as soon as our Spring elections were over, no more would be thought of it until the next election. I wish, sir, to put this question to eternal rest, by stating the plain matter of fact. Why, sir, it has been considered of so serious a nature in its consequences, and of so much importance, that the Legislature of the State of New York, in their last session, did enter into formal resolutions, instructing their delegation, in both branches of the Legislature of the United States, to use their utmost endeavors for the defence and protection of the port and harbor of New York: the whole State is alive on this subject—and the memorials now lying on your table from the Mayor and Corporation of that city, together with the petitions from the citizens of all political parties, tend to one and the same object, protection to their persons and to their property; there is not, there cannot be any dissenting voice with them on this subject.

Mr. J. Randolph was too unwell to go far into the subject, but he would ask the House whether they were acting with their accustomed caution and distrust, where the expenditure of public money was involved? He thought not. If he were convinced that the expenditure of $150,000 or even $1,500,000 would answer the proposed end, he would cheerfully give it. But, as had been observed, the system of gunboats was matter of experiment, and if they should eventually turn out good for nothing, the House would be of opinion that they had vested as large a capital in a worthless project as would be deemed necessary. He would not undertake to say that they were good for nothing—far from it. But there was no information before the House which entitled him to say they were good for much. When you compare, said Mr. R., the lavish appropriation made on this subject in Committee of the Whole, and view the economy this House always practises on every branch of expenditure, relative to the regular army and navy, looking with an eagle eye on every dollar before they part with it—it surprises me to see them voting away hundreds of thousands of dollars for a species of vessel, which, in all human probability, may be used for river craft in a few years. One thing has been ascertained. Ships of war are defensive and offensive, too, but the House will vote no money for an addition to them. I do not censure them for it; but if they will not appropriate for objects, the physical powers of which are ascertained, why vote the public treasure by handfuls for vessels, the powers of which have never been tried? Let the experiment be made, and, if it succeeds, let us appropriate liberally; but, till then, let us not vote more money than has been already appropriated. I believe there is one situation in which they may be useful—in the Mississippi. I wish, however, not to be understood as speaking as a man of science on this business. I only wish some evidence of the value of this machine, before I vest so large a capital in it. I hope, therefore, that the blank will not be filled with $150,000. As it has been stated, I think it will be extremely disproportionate to vote $20,000 for the fortification of all our harbors, and $150,000 for gunboats.

Mr. Elmer said that, under existing circumstances, he was opposed to appropriating 150,000 dollars to building additional gunboats. The House had determined that they would not authorize the President to man those already built. It appeared to him very bad economy to suffer the public vessels to lie in dock, and to build other vessels, the utility of which was not ascertained. There might be situations in which gunboats would be useful, but had they not enough of them already? If it should be ascertained that thirty or forty gunboats should be wanted for any particular purpose, Mr. E. said it might be prudent to authorize their erection. He said he had been in favor of giving authority to the President to man and equip the armed vessels and gunboats. The House had, however, refused this. If, then, they would not authorize the President, whatever the emergency, to man the present vessels, why build additional vessels?

Mr. Holland was opposed to filling the blank with so large a sum. He was also opposed to giving authority to man the armed vessels. The nation was in a state of profound peace, and he did not see that these vessels would have any thing to do. He was opposed to this appropriation on another ground. He believed, whenever the necessity should occur, they would be able, in one, two, or three months, to build as many gunboats as would be wanted.

Mr. Gregg said, from the discussions which had taken place, and the votes of the House, there might be a propriety in postponing the business for the purpose of obtaining information. For his own part, he was willing to acknowledge that he was altogether in the dark. He did not know in what situation gunboats would be useful, or the number of men required to man them; nor did he know whether land fortifications were necessary, in connection with them, to defend the port of New York. Before he could act understandingly on the subject, it was necessary for him to have this information. Some gentlemen say that gunboats will answer valuable purposes, while there are others of opinion that there are so few places, on the coast of the United States, where they will answer, that a small number of them will be sufficient. I believe, said Mr. G., under these circumstances, that it will be best to postpone the further consideration of the subject, and, in the mean time, call on the Secretary of the Navy to say at what points gunboats will answer, together with the number of them necessary, and on the Secretary at War to say whether he is in possession of any plan for the protection of New York, together with its expense and the number of men required. It will be next to madness to erect fortifications without putting in them sufficient men to keep them in repair. Many fortifications, commenced some years ago, for want of this provision, are now as useless as if they never had been begun. Mr. G. said he was particularly desirous to obtain information from the Executive as to the practicability of defending the port of New York. If it could be defended, he would not be backward on the subject.

Mr. Fisk hoped the motion would prevail. Experience had proved gunboats to be useful. In their late war with Tripoli, they had been obliged to borrow a number of them, which had proved not only an instrument of defence, but likewise of offence. It was true, also, that, in other cases, they would be useful. Indeed, they appeared to be peculiarly adapted to the United States, who had a large extent of seacoast and numbers of shoals, enabling them to act with effect; that they would rot in time was true; it was also equally true that other shipping would rot; and that the loss of fifty or sixty gunboats would not be equal to that of a single frigate. It was also equally true that gunboats did not require the same expense in manning and equipping as other vessels; they were also so situated as to be capable of being instantly manned, which was not the case in regard to other vessels. The Secretary of the Navy had stated the number of men necessary for each gunboat at twenty-seven. Take three hundred and fifty men as necessary for a frigate; of course thirteen gunboats will not require more men than one frigate. Mr. F. said he thought gunboats, in every point of view, the preferable defence. The Secretary of the Navy had stated sixty gunboats to be requisite. For the purpose, however, of accommodation, it is proposed to lessen the number of gunboats to thirty, and to apply the remaining sum to fortifications. He hoped this motion would prevail.

Mr. Early moved to postpone the further consideration of the second resolution to Monday week. In common with other members, he felt the necessity of information, before he agreed to carry further the system of gunboat defence. It appeared from the report of the Secretary of the Navy, that there were built, or on the stocks, seventy gunboats. He, for one, was of the opinion that this was a number amply sufficient to justify the requiring at least some information on the subject, either as to the ports capable of being defended by them, or their general capability of yielding defence to the United States.

The motion to postpone was disagreed to—ayes 49, noes 58.

Mr. G. W. Campbell said he was in favor of filling the blank with $150,000, as from all the official information before the House this appeared to be the best mode of defence which had been devised. He observed that some time since a majority of the House had considered the gunboat system as the best means of defence. He would ask gentlemen who were then in favor of this system, and were now opposed to it, what reasons they had for their change of opinion. If the President and Heads of Departments were of opinion that such a number of gunboats was necessary as had been named, he would ask them what reasons they had for thinking a smaller number sufficient, and whether the mere ipse dixit of a member of this House ought to stand in competition with the deliberate opinion of the heads of departments? They were peculiarly responsible to the nation, and must be considered as having taken more pains to inform themselves on such a subject than an individual member of the House.

Mr. Pitkin, in reply to Mr. Fisk, observed, that he had compared the estimates of a frigate and gunboats, from which he inferred that the equipment and annual expense of a frigate of 44 guns, compared to that of gunboats, was as eighteen to one.

Mr. Elliot said, that if the opinion of the President should be complied with, there would be one hundred and twenty-nine gunboats built, which in actual service would transcend the expense of the Navy of the United States, and would cost more than a million of dollars. Mr. E. said he considered the reproach cast upon those who were formerly the advocates of gunboats, as strong evidence of their inutility. Gunboats had been lately thought much of; what was the result? That gunboats might be considered as a kind of vessel guarding a little deposit of national spirit, if any there was left to put on board: but as soon as they were assailed by the wind or waves, their maiden purity was gone. They were of no use whenever there was wind or tide, and could only float in a time of profound tranquillity.

Mr. Alston said he possessed little information with regard to the advantages or disadvantages that were likely to flow from building the number of gunboats that was proposed. He merely rose to ask the attention of gentlemen to the grounds taken at the last session. The building of gunboats had been instituted on the recommendation of the President made at the last session. Gentlemen would there find the reasons on which that system had been begun. They were not intended to be set afloat on the ocean, to commit depredation or attack vessels at sea, but as an aid and support to our fortifications, and to prevent an enemy from annoying our seaports. It was, he believed, the opinion of the House at the last session, that gunboats constituted the best system that could be devised for this purpose.

Mr. Early moved to postpone the further consideration of the resolution until this day week.

Mr. Lloyd said he should have no objection to the postponement, if he knew any mode of obtaining the information desired. It appeared that the committee had applied to the Secretary of the Navy, who ought to possess full information on the subject. What was his reply? Waiving altogether the expression of his own opinion, he merely confined himself to stating that the President thinks it expedient to build sixty additional gunboats. Whence, then, were they to get the information that was desired, to enable them to determine whether gunboats are a proper defence for the United States? They might apply to the President or the Secretary of the Navy, and get information from them that they think them necessary. Mr. L., however, said that he was of opinion that they ought to judge on this subject from what had already taken place. For himself he was free to declare that he was opposed to the gunboat system. He had carefully attended to the arguments of gentlemen, and to what did they amount? Have they adduced an argument to show their utility, or produced an instance to show where they have been useful? It has been said that their utility is established by the use made of them against Tripoli. But he would ask whether they would have been of any use if the vessels of Tripoli had left the shore? It was admitted that gunboats were not useful on the ocean. It was evident, then, that they were building a navy for a state of perfect calm; and were gentlemen disposed to expend millions for vessels that would be only useful under such circumstances?

Mr. Mumford.—The gentleman from North Carolina on my right, said that if any gentleman can show us any better mode of defence we shall be glad to hear it, and although I think it incumbent on him to show us the utility of gunboats, I will not detain the House but a few minutes to recommend what I conceive to be a far better mode of defence, I mean solid and durable fortifications that will last for ages, and block-ships similar to the draught now held in my hand, and which any gentleman may examine at his leisure if he chooses. Sir, the experience off Copenhagen is an evidence of their real utility. Witness the engagement with the British fleet and the Crown battery, (somewhat similar to the plan of Montalembert, recommended by me in debate yesterday,) and the block-ships. That fleet was actually silenced, and nothing saved the proud navy of old England on that memorable day but the game of flag of truce played off so successfully by the hero of Trafalgar; and when in order I shall move to adopt those block-ships in place of gunboats.

Mr. Tallmadge said the question before the House had no connection with the defence of New York; it was a proposition for building gunboats. Having been on the select committee that brought in these resolutions, he thought it proper to state that there had not in that committee been a unanimous opinion in favor of gunboats. He was himself entirely hostile to the measure. He saw no necessity for adding to the number already built, or authorized to be erected. They had thirteen gunboats fit for service, and fifty-six would be soon launched. It would seem to him better to comport with the system of economy, in the first instance, to finish and prepare these fifty-six for service. No reason had been assigned for the additional sixty that had been proposed, but the mere opinion of the President. Mr. T. said he did not wish to call in question the high authority attached to the opinion of the President, but he would wish to know whether any naval officer had recommended gunboats as a proper defence for the country. He did believe there were some particular circumstances under which they would be useful, and under this impression he had hitherto voted. But when he saw nothing but gunboats called for, he was placed under the necessity of refusing to grant a single dollar. It appeared as if they were contemplated to be relied on as the exclusive defence of the United States, and as if it were intended to let the frigates rot. He was opposed to the postponement, as he did not see the probability of obtaining any useful information not already before the House.

The question was then taken on postponing the consideration of the resolution until Monday, which was carried—yeas 69.

Thursday, February 12.

Indiana—Suspension of the Anti-slavery Clause of the Ordinance of 1787.

Mr. Parke, from the committee to whom was referred the letter of William Henry Harrison, Governor of the Indiana Territory, enclosing certain resolutions of the Legislative Council and House of Representatives of the said Territory, made the following report:

That the resolutions of the Legislative Council and House of Representatives of the Indiana Territory relate to a suspension, for the term of ten years, of the sixth article of compact between the United States and the Territories Northwest of the river Ohio, passed the 13th July, 1787. That article declares “there shall be neither slavery nor involuntary servitude in the said territory.”

The suspension of the said article would operate an immediate and essential benefit to the Territory, as emigration to it will be inconsiderable for many years, except from those States where slavery is tolerated; and although it is not considered expedient to force the population of the Territory, yet it is desirable to connect its scattered settlements, and, in regard to political rights, to place it on an equal footing with the different States. From the interior situation of the Territory, it is not believed that slaves would ever become so numerous as to endanger the internal peace or future prosperity of the country. The current of emigration flowing to the Western country, the Territories ought all to be opened to their introduction. The abstract question of liberty and slavery is not involved in the proposed measure, as slavery now exists to a considerable extent in different parts of the Union; it would not augment the number of slaves, but merely authorize the removal to Indiana of such as are held in bondage in the United States. If slavery is an evil, means ought to be devised to render it least dangerous to the community, and by which the hopeless situation of the slaves would be most ameliorated; and to accomplish these objects, no measure would be so effectual as the one proposed. The committee, therefore, respectfully submit to the House the following resolution:

Resolved, That it is expedient to suspend, from and after the 1st day of January, 1808, the sixth article of compact between the United States and the Territories and States Northwest of the river Ohio, passed the 13th day of July, 1787, for the term of ten years.

Referred to the consideration of the Committee of the Whole on Monday next.

Friday, February 13.

Importation of Slaves.

The bill, sent from the Senate, entitled “An act to prohibit the importation of slaves into any port or place within the jurisdiction of the United States, from and after the first day of January, in the year of our Lord one thousand eight hundred and eight,” together with the amendments agreed to yesterday, were read the third time; and, on the question that the same do pass, it was resolved in the affirmative—yeas 113, nays 5, as follows:

Yeas.—Evan Alexander, Isaac Anderson, John Archer, David Bard, Joseph Barker, Burwell Bassett, George M. Bedinger, William W. Bibb, Barnabas Bidwell, Phanuel Bishop, John Blake, jr., Thomas Blount, James M. Broom, Robert Brown, John Boyle, William A. Burwell, George W. Campbell, John Chandler, John Claiborne, Joseph Clay, Matt. Clay, George Clinton, jr., Frederick Conrad, Orchard Cook, Leonard Covington, Richard Cutts, Samuel W. Dana, Ezra Darby, John Davenport, jr., Elias Earle, Peter Early, James Elliot, Caleb Ellis, Ebenezer Elmer, Wm. Ely, John W. Eppes, William Findlay, James Fisk, Charles Goldsborough, Peterson Goodwyn, Andrew Gregg, Isaiah L. Green, Silas Halsey, John Hamilton, Seth Hastings, William Helms, David Holmes, John G. Jackson, Walter Jones, James Kelly, Thomas Kenan, Nehemiah Knight, John Lambert, Joseph Lewis, jr., Henry W. Livingston, Edward Lloyd, Matthew Lyon, Duncan MacFarland, Patrick Magruder, Robert Marion, Josiah Masters, William McCreery, David Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, John Morrow, Jonathan O. Mosely, Gurdon S. Mumford, Jeremiah Nelson, Thomas Newton, jr., Gideon Olin, Timothy Pitkin, jr., John Porter, John Pugh, Josiah Quincy, John Rea of Pennsylvania, John Rhea of Tennessee, Jacob Richards, John Russell, Peter Sailly, Thomas Sammons, Thomas Sanford, Martin G. Schuneman, Ebenezer Seaver, James Sloan, Dennis Smelt, John Smilie, John Smith, Samuel Smith, Richard Stanford, Joseph Stanton, William Stedman, Samuel Taggart, Benjamin Tallmadge, Sam’l Tenney, David Thomas, Thomas W. Thompson, Uri Tracy, Philip Van Cortlandt, Killian K. Van Rensselaer, Joseph B. Varnum, Daniel C. Verplanck, Peleg Wadsworth, Matthew Walton, John Whitehill, Robert Whitehill, Eliphalet Wickes, Nathan Williams, Alex’r Wilson, Joseph Winston, Richard Wynn, and Thomas Wynns.

Nays.—Silas Betton, Martin Chittenden, James M. Garnett, Abram Trigg, and David R. Williams.[47]

Monday, February 16

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.