NINTH CONGRESS.—SECOND SESSION. PROCEEDINGS AND DEBATES IN THE HOUSE OF REPRESENTATIVES. (continued 3)

Mr. Early.—Mr. Speaker, the motion, timed as it is, and accompanied by the speech we have this day heard from the honorable mover, has a suspicious aspect and influence upon certain judicial procedures, depending at the present moment within the walls of this building. Is this House willing to suffer such manœuvres to take their proposed course, and to produce their wished-for effect? Are they prepared to interpose the weight of their influence to ward off the infliction of punishment upon traitors, by passing sentence of condemnation on acts which have produced their arrest and confinement? But it is not now alone that this pernicious tendency of the resolution is to be felt. Actions for damages are no doubt to be brought against the Commander-in-chief. Whether the damages which may be recovered, ought or ought not to be made good to him by the Government, must depend upon circumstances yet to be developed. That he has violated both law and constitution, is not denied. But whether there existed that imperious necessity for such violation which alone can justify it, and give him a claim upon the Government for the damages to which he may be subjected in consequence thereof, can only be determined upon a full view of all circumstances. Here presents itself another strong objection to the resolution. Its tendency is to procure now that expression of opinion by the National Legislature, in relation to the events at New Orleans, which will, which must, raise a powerful obstacle hereafter, against a remuneration of any damages that may be recovered against the Commander-in-chief. To this I will not consent—against it I hold up my hands, and enter my most solemn protest. There is still a farther objection; the tendency of the resolution, if adopted by the House, will be to influence the amount of damages which may be assessed. Yes, sir, it will be viewed as the expression of an opinion on the part of Congress as to the demerits of the act for which damages are claimed. The effect upon the minds of a jury is even more to be dreaded than that upon the opinion of the judges. Who is there that cannot perceive its force? Who that must not deprecate its effect? If it should be observed that the resolution itself cannot be open to all the objections now urged against it, let it be recollected that the honorable mover has taken special care to give to it a direction, and accompany it by circumstances which must insure to it the operation complained of. In ordinary cases there can most certainly be no objection against an inquiry after defects in any branch of law, with a view to the application of some remedy. But such is not, as I apprehend, the state of the present question. Admit, for argument’s sake, that a defect does exist in the present provisions for securing the habeas corpus privilege, can an adequate remedy be now applied? It cannot, we know it cannot.

But, Mr. Speaker, where is the proof that the provisions now in force are not sufficient for the security of the person? Have you any evidence to this effect? If you have, I am ignorant of it. Are not the courts of justice open? Let the persons injured resort thither. Let their complaints be laid before an American jury. Will not an adequate redress be had there? Are the people of the United States too insensible of the value of the privilege of the habeas corpus to award damages proportionate to the injury sustained by its infraction? Or is it that gentlemen suspect, that the individuals who have been arrested were engaged in a plot so diabolical that a jury would, upon a view of the whole ground, assess damages too inconsiderable to comport with their wishes? Is it for this reason that the American Congress are asked to prejudge the case, and to throw their weight into the scale against an officer who, from every thing that yet appears, has acted from motives of the purest patriotism? The part he had to perform was one of the most arduous ever assigned to the lot of man. Entrusted with the defence of an important and extremely remote point, where all was to be done before instructions could be received from his Government, every measure was to be taken by his own judgment and upon his own responsibility. His chance of information as to the extent of the danger was extremely limited, and, so far as facts have come to light, he had powerful reasons for believing that the conspiracy was deeply laid—that it had diffused itself extensively in the very bosom of the country against which it was directed, and that it would be supported by a military force far more numerous than any he had at command.

Mr. Broom.—Mr. Speaker, I confess that the opposition which this resolution has met with does surprise and astonish me, and more especially when I consider the quarter from which it comes. That those who have been the most clamorous about the rights of the people, who have been jealous in the extreme of even the lawful exercise of power, who have assumed to themselves almost the exclusive privilege of protecting our rights, should now refuse even an inquiry whether those rights cannot be better protected, is to me a problem which I cannot solve, unless I suppose that these were principles and professions intended only for opposition, but never as the guide of administration. But when the principle is avowed that no laws shall be enacted for better securing our personal rights, and that no inquiry even on the subject shall be made at this time lest it might cast a censure on the conduct of an officer who violated them, I consider it my duty to protest against it. Sir, is it come to this, that when the Commander-in-chief of the Army of the United States shall turn his arms against our constitutional rights, that we shall not provide against future violations for fear of exciting a prejudice in the public mind against the officer? Prostrate indeed must be our condition when we can see our great rights of personal liberty trampled upon by a military commander, and be deterred from legislating lest the punishment of future violations should be construed into the murmur of disapprobation of the past! For my own part, I deprecate such a state of things, and, in spite of party, trust that the highest legislative body of a free people will not be found so unfaithful to themselves and their country as to give it their sanction.

The Message of the President, of the 22d of January, informs us that two persons have been seized at New Orleans by General Wilkinson, and embarked for ports in the Atlantic States, and promises that, upon their arrival, they shall be delivered over to the custody of the law. General Wilkinson states that Mr. Bollman, one of the persons so seized, was required by the superior court, but that he got rid of that affair under the usual liability for damages. Another message informs us of their arrival here, and that measures are taken to hold them in custody. These facts warrant me in saying that, in defiance of the Constitution of the United States, persons have been seized by military authority; that they were demanded by the civil authority; that the military refused to deliver them up; and that they were transported under military guard, and by military authority alone, to this city, and that here the first steps were taken to put them into the custody of the law. Is it possible that we can shut our eyes upon these transactions, or reconcile it to ourselves to become the mere passive spectators of this violent usurpation of power? What excuse can any man render to his country for his supineness, in case of the commission of future violations? Can he plead his ignorance of what is officially communicated to him? Or can he say he was not warned of the dangerous consequences of these measures, or of the insufficiency of the laws to prevent them? The whole country know the fact, and deprecate the consequences, and they know also that we have received official information of them, and they look to us, as their Representatives, to use every means in our power to prevent the recurrence of them. Can any man be willing that his right to personal liberty shall depend on the will of an executive or military officer? If he can, he does not deserve to possess the right, and is well represented by those who refuse to protect it.

In speaking of probable cause of arrest, I confined my observations to the case of Mr. Alexander. I have seen no message informing us of the particulars of this case, but it is said that this gentleman, in his professional character, moved the court at New Orleans for a writ of habeas corpus, for one of the persons arrested by military orders; upon the refusal of the General to obey the writ, he either moved, or was about to move the court for an attachment against him, and was soon after arrested by order of the General, and transported to Fort McHenry, at Baltimore; from thence he was brought to this city, and taken before a judge of the Territory of Columbia, where he was informed that there was no charge against him sufficient to warrant his arrest, and he was accordingly discharged.

I now put it to the candor of gentlemen to say whether in this case there was any probable cause of arrest, or whether the same outrage might not be practised upon any other citizen of the United States upon the same principle, by the commander of any fort or garrison; and I will ask, also, whether the General might not as well have sent him to California, or Nootka Sound? For he was not charged with any offence upon which he was liable to arrest. If we have constitutional privileges, we must be always ready to protect them; and if the privileges now violated are not worth protecting, where are we to make the stand? When we see a cancer even in the extremities of the body politic, we must apply the knife, or the caustic, or it will reach the vitals. There ought to be no temporizing; for it will become the more inveterate and confirmed, the longer we delay. Without the most prompt attention to the preservation of our privileges, we may have the form, but we shall not long have the substance of a free Government; and of all Governments I think that the worst, where the sound of liberty supplies the place of the reality, and a thousand petty tyrants take shelter under the cloak of republicanism.

It is said these men could not be tried at New Orleans; it is not material to involve in our discussion this question; for if they could not be tried they might have been imprisoned there, until they were transferred according to law to the place where a trial could be had; but it can never be justifiable in a military officer to seize and deport to any part of the United States, any citizen whom he might suspect of guilt. If it were admitted, an officer might carry a man from place to place until he found judges and juries disposed to convict—the constitution to the contrary notwithstanding. General Wilkinson’s zeal may have been sincere and his motives pure, and the pressure of circumstances such as to make him feel justifiable in his conduct; but, sir, we never can with safety entrust such unlimited discretion to any military officer; and such conduct, however innocent the motives, ought to be guarded against by the most severe laws. The second objection of the gentleman from Massachusetts is, that the laws are already sufficient. They surely have not been effectual to prevent the abuse of the privileges of habeas corpus. The writ was issued at New Orleans, and General Wilkinson in open court took upon himself the responsibility of refusing to obey it. The writ was issued at Charleston, and the officer refused to obey it, and the military continued in possession of their prisoner until they arrived at the place of their destination. The people of England never considered the writ of habeas corpus perfectly secure until it was strengthened by the statute of Charles.

Mr. Jackson had hoped that the gentleman from Delaware would have contented himself with professing his regard for the rights of the citizen, and not troubled the House with the long speech which he had delivered on the occasion. Mr. J. said it gave him alarm to find such sympathy for men guilty of the most atrocious crimes. Treason in some countries may be an act of magnanimity, but here it is the worst of all crimes, because it aims at the destruction of the best Government and the happiest society in the world.

Mr. J. proceeded to observe that if any officer will violate the constitution and take the responsibility, it is in vain to make laws in order to prevent it. But were there no circumstances to justify Wilkinson? He saw treason lurking on every side. There are cases in which necessity affords a complete palliation. The President’s Message does not confirm the declaration of the gentleman from Delaware, that there were no grounds for a charge against Alexander. [Mr. J. here read Wilkinson’s affidavit.] Does it not show that they are all linked together? Wilkinson believed, and no doubt justly, that these persons could not be safely imprisoned at New Orleans. When it appeared that the judges, at least one of them, was desirous not to oppose the treason, it would have been madness in the extreme to have left the traitors there, and especially when it was expected that Burr would soon arrive with a powerful force.

The relief for abuses of the writ of habeas corpus is in trial by jury. This is the best relief. But the violator is also liable to impeachment, and is amenable to the Government. The outrages spoken of have a remedy—the privilege of the writ is amply secured; if the constitution has been broken, a law would also have been broken in the same circumstances. Mr. J. then concluded by announcing his determination to vote against the reference of the resolution.

Several members were rising to speak, when an adjournment was moved and carried—yeas 60.

Wednesday, February 18.

Writ of Habeas Corpus.

The House resumed the consideration of the motion of Mr. Broom, depending yesterday at the time of adjournment.

Mr. Elliot.—Mr. Speaker, gentlemen have generally been disposed, and I think with propriety, to consider the subject in two points of view. First, to examine the merits of the proposed resolution upon general principles, abstracted from all connection with events that have occurred, either recent or distant. Secondly, to consider the propriety of exercising the supreme legislative power, to preclude the recurrence of events which have sacrificed for a time “the holy attributes of the constitution,” to borrow the language of the great violator of the constitution himself, at the shrine of military power.

Upon the first point, gentlemen who have expressed their sentiments, have been unanimous, or nearly so, in declaring that legal provisions of the kind now contemplated ought to be made, at a proper time, if those now existing are insufficient and inoperative. Those who have told us that the British statutes upon the subject of the writ of habeas corpus are in force in the United States, or even that it is doubtful whether they are so or not, need not have told us that they are not professional men; it was a work of supererogation. No professional man could for a moment entertain the idea that the statutes of Great Britain are laws of the United States. The question may be considered as undetermined, whether the common law of England, or any part of it, which has not been expressly recognized by our constitution and statutes, is law in the United States, considered in their federal character; it is at least well known that upon that question, a unanimous opinion does not exist in the first judicial tribunal of our country. For one, I do not believe that the United States, as the United States, possess any code of common law. I know of no laws of the Union but the constitution and statutes. That constitution and those statutes have recognized, or rather referred to certain portions of the common law, and particularly to certain technical common law terms and rules, as rules of practice in the federal courts; and beyond those the courts have common law powers. At all events, we have not adopted any of the British statutes, and particularly, and by mere implication too, statutes highly penal in their operation. The doctrine is too absurd to be countenanced, upon serious reflection, by any man of common discernment. The constitution has declared that “the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of invasion or rebellion, the public safety shall require it.” But neither the constitution nor your laws have made it a positive duty of the courts to issue the writ in any particular case; still less have they secured the performance of that duty by any penal sanctions. Can it then be improper to provide means to coerce the courts and officers of the United States in this particular, and to leave to all the citizens, at all times and under all circumstances, such an invaluable constitutional privilege? Very few will deny or doubt the propriety of the measure. But many will say that it is ill timed, and the question of time naturally introduces us to the second scene of discussion.

It is said that it is improper at the present period to agitate the question now under consideration. In my apprehension the objection is a very strange one. The constitution has just been violated by the commander of your army; violated at the point of the bayonet, and in more than one or two of its most essential articles. In addition to the celebrated part of that instrument which prohibits the suspension of the habeas corpus, except by the supreme civil power, in crises of great national danger, several of those amendatory articles which peculiarly secure the rights of the citizen, and the adoption of which, on that account, were necessary to reconcile the majority of the people to the original constitution itself, have been disregarded and derided by a military chieftain. I allude to the following articles, all of which have been violated in most of their essential provisions:

“Art. 4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

“Art. 5. No person shall be held to answer for a capital, or otherwise infamous crime, unless upon a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

“Art. 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel in his defence.”

It is obvious that most of the privileges intended to be secured by these articles to our citizens have recently been denied to some of them, at the point of the bayonet, and under circumstances of peculiar violence. It may, indeed, be said that the privilege of the writ of habeas corpus was not denied in the first instance; that it could not be said to be suspended until the injured persons were placed in a situation which entitled them to demand it from the judicial power of their country. It is true that, notwithstanding inter arma silent leges, although the laws were silent amid the thunder of arms, and although a thousand terrors hovered around those who dared to exercise their professional duties in support of the constitutional rights of the citizen, a writ of habeas corpus was claimed and obtained; and I had supposed that the very singular return which is said to have been made to the writ was placed on our official files. On searching them, however, I do not discover it; but it has been published in all the newspapers, and a copy of it is now before me, which I will read:

“The undersigned, commanding the Army of the United States, takes on himself all responsibility for the arrest of Dr. Erick Bollman, on a charge of misprision of treason against the United States, and has adopted measures for his safe delivery to the Executive of the United States. It was after several consultations with the Governor and two of the judges of this Territory that the undersigned has hazarded this step for the national safety, menaced to its base by a lawless band of traitors, associated under Aaron Burr, whose accomplices are extended from New York to this city. No man can hold in higher reverence the civil institutions of his country than the undersigned, and it is to maintain and perpetuate the holy attributes of the constitution against the uplifted hand of violence that he has interposed the force of arms in a moment of extreme peril, to seize upon Bollman, as he will upon all others, without regard to standing or station, against whom satisfactory proofs may arise of a participation in the lawless combination.

“JAMES WILKINSON.

“Headquarters Army of the U. S.,

“New Orleans.”

Here is a return, not of obedience to the laws, and high reverence for civil institutions, but of disobedience and defiance. The constitution is violated in order to preserve it inviolate! Prostrated in the dust by military power, for the purpose of maintaining and perpetuating its holy attributes. And what great national object was to be accomplished by such extraordinary measures? What necessity could exist of seizing one or two wandering conspirators, and transporting them fifteen hundred or two thousand miles from the constitutional scene of inquisition and trial, to place them particularly under the eye of the National Government, when, if the opinion of the officer himself was correct, it would immediately become the duty of that Government to suffer them to go at large? In regard to one of them, the General was uncertain whether he had committed a major or a minor crime; and the other he explicitly pronounces, as we learn from our official documents, guilty of misprision of treason, at all events a bailable offence. He says, “from the documents in my possession and the several communications, verbal as well as written, from the said Dr. Erick Bollman, on this subject, I feel no hesitation in declaring, under the solemn obligation of an oath, that he has committed misprision of treason against the United States.” Surely it is desirable to provide against the recurrence of scenes of this description. Or shall it be admitted that the whim, the caprice, the passion, or the ambition of a martial chief, may supersede at will the most important checks and safeguards of the constitution?

Mr. J. Randolph introduced his speech in favor of the resolution by observing, that he understood the question before the House to be, whether they would refer to a Committee of the Whole a motion proposing an inquiry whether further legal provision be not necessary to prevent violations of the writ of habeas corpus.

How long it had been the fashion to debate the merits of a subject on a simple motion to commit, it was not material to inquire. He believed it had commenced the present session.

Mr. R. then observed that he would proceed to answer some objections which had been yesterday offered against the resolution, and state the reasons which induced him to support it, come from whence it may. The first objection which he heard was, the quarter whence the resolution came. Permit me, said Mr. R., to remind the House that if those who have been called into public life on account of their professed attachment to correct principles, ever quit the ground of trial by jury, the liberty of the press, and the subordination of the military to the civil authority, they must expect that their enemies will perceive the desertion and avail themselves of the advantage. Can they who thus desert their old principles blame others for assuming the popular ground, which they have abandoned? Whoever stands forward in defence of the constitution, and the rights of the people, shall have my support quo ad hoc.

We have now on our tables official information from the President of the United States, that the privilege of the writ of habeas corpus has been denied and the constitution violated. And will you attend to reports from your Committees of Claims, of Commerce and Manufactures, of Ways and Means, and leave the constitution and the rights of the people to shift for themselves? There is abundant time. Congress can meet again after the fourth of March, and to postpone or delay a subject which affects the vitals of the State on account of a press of private or local business, would be a dereliction of our duty and of our oaths. Away then with such objections.

As to the objection that the subject of habeas corpus is now, sub judice, in the court below, no one thinks of a law which shall have a retro-active operation. I trust in God that no such ex post facto provision will be agreed to as was foisted into the bill which came from the Senate, to suspend the habeas corpus, and which was intended in a side way to cover with a mantle the most daring usurpation which ever did, will, or can happen, in this or any country. There was exactly as much right to shoot the persons in question as to do what has been done.

It has been contended that any measures on the part of this House will give a bias to the proceedings which have been instituted in the courts. Let me ask, what official notice we have of any such proceedings? But disdaining such a shelter, though it has been resorted to on the other side, it is sufficient to observe that a man has only to break the law or constitution in the beginning of a session, and then forsooth you are to be foreclosed from legislating on the subject, because an instance has recently occurred to show the necessity of legislative provision.

Mr. R. said this was the first time in his life that he had heard it asserted that no law ought to be passed to punish any offence, because that offence had recently happened. He hoped he should never hear again such a reason delivered. The Romans, believing the crime impossible, had no law to punish parricide, till a case occurred, which proved their mistake. What would you think of Cato or Cicero rising in the Senate of Rome, and urging such a reason against a law for the punishment of this crime?

In the discussion of this simple motion to refer the resolution to a committee for inquiry, which I should have supposed would have been carried without any objection at all, hints of indemnity, I suppose to try the public pulse, have been thrown out. Permit me to say that bills of indemnity are not known to the constitution. If the time ever arrives when the representatives of the people vote the public money to indemnify those who break the constitution, we shall indeed become homines servile paratos, and fit for any Government and for any state of society, however despotic or barbarous. If ever the minions of the Executive, or the Legislature, whether civil or military, are indemnified for their outrages out of the public Treasury, the constitution must have arrived at its last crisis.

It has been insinuated that certain gentlemen in this House lean too much towards standing armies, &c. Agreed. But in advocating an increase of the public force, my object was to chastise an insolent foe, not to employ it against our own citizens and to substitute it in lieu of the civil authority. My dread of standing armies has been more than a hundred times increased in consequence of the services to which our present little force has been put. From such armies good Lord deliver us!

I hope the committee to whom this subject may be referred will not forget to prevent a man from being embarked on board a shallop, and transported one thousand or two thousand miles for trial. For I have heard a law officer of the United States contend that a man may be arrested in one of the territories, and a trial had in any part of the country, wheresoever he may be brought. If this abominable doctrine be supported by law, it is high time to correct it. The constitution, in an article amendatory, declares that unusual punishments shall not be inflicted. Transportation, even after conviction, is an unusual, cruel, and severe punishment; but here it has been inflicted even before a conviction, and before any trial of the delinquents.

The court of Orleans has the same power as the district court of Kentucky, which is invested with the powers of a circuit court. If the district court of Kentucky has jurisdiction of treason, which no man ever doubted, it follows that the court of Orleans has the same authority.

When the constitution gave to Congress exclusive jurisdiction over a district ten miles square, it filled the friends of liberty with alarm. But no man then dreamed that this blot on the map, this nondescript region, a King’s Bench was to be established for the trial of delinquents against the Government, collected from all parts of the country. The inhabitants of this miserable heath, men held in a state of bondage to which no man would submit, who have no voice in electing rulers of the country, are destitute of the right of self-government—these men are made the judges and jurors to try the freemen of America. Were I on trial, I would challenge the jury. They are not qualified for this office; they are not my peers. The people here must be the tools and expectants of ministerial favor. Let them move in their own humble sphere, but let them never dare to touch a charge of treason.

In the Declaration of Independence, transportation for trial is alleged as one of the grievances imposed by the British Government on the colonies. Now it is done under the constitution, and under a republican Administration, and men are transported without the color of law, nearly as far as across the Atlantic.

I make no profession of sympathy for the men who have been denounced as traitors. I argue on the supposition that they are traitors; there is no need of much exertion in behalf of good men. Attacks on the liberty of the people are, as has been stated before, made always in the persons of the vile and the worthless. But when precedent is once established in the case of bad men, who, like pioneers, go before to smooth the way, good men tremble for their safety.

Mr. R. observed that he would not say much of the Commander-in-chief. The least said, till they knew all, was the best. He had always thought that there were more rogues than one. This business of canonizing and sanctifying men before they are dead, he did not like. In the State of Virginia they had been compelled to change the names of several counties. There was a time in which the name of Arnold might have been preferred, and perhaps there may now be places in the United States which derive their names from Burr.

Mr. R. could not admit the jesuitical casuistry which had been displayed with regard to an oath. If a man breaks the constitution, which they were all sworn to support, punish him. If the violator be Washington, Franklin, or Jefferson, Mr. R. would punish him, and he would also say, that no indemnity ought to be voted for him.

Mr. R. stated at some length the circumstances of the proclamation issued in England to prohibit the exportation of corn, when Chatham and Camden were in the Ministry, and who afterwards refused a bill of indemnity. Mr. R. observed that bills of indemnity were known to the English Constitution, and requisite in the case stated. But Chatham and Camden, though both the known and tried friends of liberty, here abandoned the popular ground, and rested their defence on arbitrary principles, while the wary Mansfield, an old tory and a high churchman, availed himself of the advantage, took up the cudgels for the people, and completely succeeded.

Mr. G. W. Campbell said the first inquiry that naturally presents itself, in discussing this subject, is, what has occasioned the measure to be brought before the House at this time? This answer is given—the conduct of General Wilkinson, in arresting Bollman and others, at New Orleans, and transporting them to this place for trial, under military orders, in violation of the constitution and laws of the Union. Suppose this to be the case, what remedy can the Legislature apply? Does the evil complained of arise from the want of laws to protect the liberty of the individuals and punish those who violate it, or from those laws not being duly obeyed? If the evil arises from a disobedience to existing laws, no act passed by this House can afford a remedy. Those entrusted with the execution of the laws may be stimulated to carry them into effect by this transaction, and to punish the aggressors, but it is no ground upon which this House can act, and no act that we could pass could, in any degree, affect the measures that have already taken place. The principal inquiry therefore appears to be, whether there is any law to punish the commission of such crimes as General Wilkinson is charged with? There can be no doubt on this subject; there are laws in every part of the Union to punish offences. If those persons were seized and carried away without legal authority, or a just cause that would excuse the act, it will be a false imprisonment, including in it an assault and battery—an offence punishable by law in every part of the United States. The offender may be indicted, and, on conviction, fined and imprisoned according to the nature of his offence. He may also be sued by the party injured, and damages recovered in proportion to the injury sustained. This is the remedy afforded by the law in such cases, and it has been considered sufficient to correct the evil.

It has not been pretended that General Wilkinson, if he has acted in the unwarrantable manner stated on this floor, cannot be punished according to the nature of his offence; and it has already been stated that he is liable, if guilty, to be punished by indictment, and be made to answer in damages by civil suit. With regard to the violation of the constitution said to have been committed by General Wilkinson, in not obeying the writ of habeas corpus issued by the judge at Orleans, I may be permitted to observe that this part of the subject does not appear to have been well examined by those who have spoken in favor of the measure. The words of the constitution on this subject are, art. 1. sec. 9: “The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” This provision evidently relates to Congress, and was intended to prevent that body from suspending, by law, the writ of habeas corpus, except in the cases stated, and has no relation whatever to the act of an individual in refusing to obey the writ—such refusal or disobedience would not certainly suspend the privilege of that writ, and must be considered in the same point of view as the violation of any other public law made to protect the liberty of the citizen. In the present case, however, if there was a refusal to obey this writ, it was a violation of an act of Congress, establishing that part of Louisiana where this transaction took place into a Territory, which expressly declares that the inhabitants of the said Territory shall be entitled to the benefit of the writ of habeas corpus, and it is punishable as such; but it cannot be considered a breach of the constitution in any other respect than the violation of any public law made in pursuance of that constitution would be, and of course cannot require legislative interference. With regard to the other three articles of the constitution, to wit: the 4th, 5th, and 6th amendments thereto, said to have been violated by the conduct of Wilkinson, a very brief examination will show that there are provisions by law in every part of the Union to enforce obedience to those parts of the constitution and punish those who violate them. The first of these articles merely declares the right of the people to be secure in their persons, houses, &c., against unreasonable searches, seizures, &c.; and that no warrant shall issue, but upon probable cause, supported by oath or affirmation, &c. The first part of this only can relate to the present case, for it is not alleged that any warrant was issued; and every law existing in society for punishing offences against the persons and property of individuals, is calculated to enforce obedience to this provision. If a man is seized without legal authority or a just cause, cannot the offender be punished? He certainly can—and in what other way could you enforce obedience to this provision? The other two articles before mentioned can certainly have no bearing on the question before the House, they merely relate to the manner in which, and the place where offenders shall be tried—they are directory to the Legislature and to courts of justice; and it is not stated that either the one or the other have acted contrary to their provisions. No attempt to try these persons was made by General Wilkinson; he sent them to this place, they were delivered to the civil authority, and their case is now under legal adjudication. The courts of justice are the proper tribunals to decide, according to existing laws, where they are to be tried and in what manner. We are told, however, sir, it is necessary to make provision by law to enforce obedience to the writ of habeas corpus, to punish those who may refuse to grant it. With regard to the latter case, there is not the least ground of complaint—the writ has not been refused in any instance when demanded. It was issued at New Orleans, and also at Charleston, and indeed it is not pretended the civil authority have on any occasion violated this writ. It has, on the contrary, yielded the most prompt obedience to it in every instance.

If it was made to appear to me that there were not provisions, by existing laws, to enforce obedience to the writ of habeas corpus, and to punish the violations of it, I would be among the first to make such provisions. But this has not been shown, and cannot, I presume, be proved to be the case. In every State, and in every Territory, as far as we are informed, there are laws to enforce obedience to this writ, and to regulate the mode in which it shall be obtained and prosecuted; and, by the thirty-fourth section of the act to establish the judicial courts of the United States, it is declared that “the laws of the several States, except when the constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the courts of the United States, in all cases where they apply.” This provision must relate to criminal as well as to civil cases. You have, therefore, the same provisions, at least, to enforce obedience to the writ of habeas corpus in the courts of the United States, that there are in the respective State courts; and it has not been shown that these provisions are defective in the State courts. Gentlemen have not pointed out an instance in which this writ can be violated with impunity. In every case that can be stated, the aggressor may be punished under existing laws; and that is the only mode in which you can enforce obedience to this writ, or to any law. You cannot prevent, absolutely, the commission of a crime; you can only punish the offender, and thereby discourage others from committing similar offences. You cannot prevent a man, while at liberty, from exercising his physical strength; and you can no more prevent him, by law, from violating the writ of habeas corpus, than you can prevent one man from striking another, or from seizing him, and carrying him away by force. All you can do, in either case, is to declare the punishment that shall be inflicted on such offenders.

The gentleman from Vermont (Mr. Elliot) has told us he has not discovered a tittle of evidence to show that the persons have committed treason, and that their crime, at most, can only be misprision of treason. Although we are given to understand that that gentleman is a professional character, I must beg leave to differ with him on this subject. If treason has been committed by the author of this conspiracy, those persons, if guilty of any crime, must be guilty of treason, and not of misprision of treason only. They aided and abetted in carrying into effect the project. They carried and delivered a letter, knowing its contents, from the principal conspirator to General Wilkinson, for the purpose of engaging him to join in this undertaking. They used their influence to corrupt him. These must be considered overt acts, giving aid and comfort to the enemies of the nation, and will make them principals in the treason, if such a crime has been committed; for, in this crime, there can be no accessories—all who are concerned are principals. Misprision of treason is a distinct and separate offence. It is merely the neglect or omission to make known to the proper authority the treason that has come to the knowledge of the party. It supposes that no act has been done by the party charged; that he has given no aid or assistance whatever to the enemies of the country, but has merely acted wrong, mistaken his duty (which is the meaning of the term) in not discovering, in due time, the acts of treason that have come to his knowledge, and is, on that account, guilty of high misdemeanor. It was not, however, my wish, or intention to give any opinion on the merits of this case. I am willing to leave it to the decision of the constitutional tribunals. But, gentlemen seem as if they were determined to discuss the guilt or innocence both of General Wilkinson and the prisoners. This I consider altogether improper, as it might give an undue bias to the public mind on this subject. For this reason also, sir, I am opposed to referring the resolution to a select committee.

Mr. Holland.—It is said by gentlemen, that, by the conduct of General Wilkinson in sending Bollman and others from Orleans to this city, there is a flagrant violation of the constitution, and a crime committed that should be punished as a felony, and the purpose of making an offence of this kind a felony is the object of the present motion. That these persons may have been deprived of certain rights secured by the constitution is a possible and probable case; for every illegal deprivation of right secured by law under the constitution, may be said with equal propriety to be a violation of the constitution. But, sir, so far as respects the habeas corpus, the suspension of it applies to the Legislature, and not to persons. The constitution says it shall not be suspended but in case of rebellion, or when the public safety requires it. This prohibition manifestly applies to the Legislature, and not to persons in their individual capacity. If, therefore, the Legislature suspend the habeas corpus when there is no rebellion, or when the public safety does not require it, they would be guilty of a violation of it. But how has General Wilkinson violated it? He has no power to issue or detain the writ. The issuing of the writ of habeas corpus is the duty of your judges, and they have in all cases issued the writ. It was issued in the present case at Orleans; and issued at this place in behalf of these men. Your judges have at all times in this particular been ready to do their duty. And if so, where is the necessity of coercing them, as proposed, by fines and penalties? Sir, the necessity does not exist. If General Wilkinson has disobeyed this mandatory writ, he stands in contempt, and your judicial courts have already power to punish contempts. If he has violated any law, he is liable to be punished. If he has deprived any persons of their rights secured by the constitution or by the law, he has done it upon his own responsibility. The laws are ample, and will give redress for every injury. Let these persons bring their actions, and if it should appear that they are innocent, and that the General has wantonly deprived them of their rights, an honest jury will give exemplary damages; but if on trial it should appear that they were guilty persons, and that the public safety required their being transmitted to this place, they will not, they ought not, recover a single cent.

Mr. Alston said this proposition is brought forward in a most imposing shape, and it is undoubtedly one to which no one would object, if brought forward at a proper time, if there were not questions depending on which it is calculated to operate, and if there existed the least probability of any thing final being done upon it, before the close of the session. The inquiry is proposed to be made by a select committee; the mover of the resolution will of course, according to the mode of proceeding in the House, be chairman of that committee, and the report will in all probability be made at too late a period of the session, to admit of a full discussion, and an effect be produced by the report very different from that which would result from a full investigation of it. May not its effect be, to cover a decision which the gentleman knows is about to be made? To make it appear that those who make that decision have the voice of the people with them? The first course proposed, of submitting this proposition to a Committee of the Whole, had a tendency to produce an immediate investigation of the subject; an agreement to the present course will have the contrary effect, of delaying it. This proposition really presents a strange appearance. Gentlemen, heretofore the vehement advocates of energetic measures, are now converted into their opponents. This, however, is not strange to an accurate observer of human nature; opposition is opposition still, and let it come from what quarter it may, the general clamor is a regard to the liberty and rights of the citizen. But surely this of all species of protection is the strangest! The protection of men engaged in violating the rights, the liberties, and constitution of their country! Any judge, says the gentleman, who shall dare to refuse to grant the writ of habeas corpus, or officer who shall refuse to obey it, shall be mulcted in heavy damages. What does this amount to? If any person shall even see treason committed before his face, or Aaron Burr marching at the head of the marine corps, he shall not dare to arrest them; but shall, in the first instance, go before a judge, or render himself liable to be mulcted in heavy damages.

Mr. J. Randolph.—Where are we? Are we in the Congress of the United States? Is this the House of Representatives of this Union, and are we to hear on this floor the doctrine advocated that a flagrant violation of the constitution is to be remedied by an action of damages as in a common assault and battery? Is it possible that such can be the idea of this House; such our respect for the constitution, for the institutions we are all sworn to support, and which, if we do not support, whether our treason be committed under the banners of Aaron Burr, or under the cover of law, we are equally traitors? Is this House ready to sanction the doctrine that an open and avowed contempt of the civil by the military authority, shall be considered as nothing more than a common violation of law? A refusal to respect the writ of habeas corpus by a civil officer, is a high misdemeanor. Much more is it a misdemeanor, when committed by a military man, and more especially if committed by the commander-in-chief of an army. With regard to plots and plotters, conspiracies and conspirators, I am not their friend. If they exist, I would deal with them according to law, I would give them sheer law; they should have no more at my hands. Do gentlemen, however, pretend to say that you can proceed against a man otherwise than according to law? I stand here as the advocate of the law. Laying aside the question of guilt, I say proceed according to law. If you do not do this, you may first incarcerate a man, and afterwards summon a venire to try whether the act is justifiable. It is said dead men tell no tales. I will put a case. I will suppose Aaron Burr a conspirator against the United States; a traitor. Let him die. If so, I would hear the sentence pronounced with pleasure.

But suppose another thing—suppose a conspiracy has been going on for several years; suppose a person has been for several years concerned in it, and to cover himself from suspicion he outherods Herod, and because his weak nerves cannot endure the sight of a traitor stabs him. Is this to be justified? It is well known that a conspiracy to separate Kentucky from the Union is no new thing, and no zeal which any man concerned in it may now manifest can throw off suspicion from his shoulders. These are the plain facts.[49]

I will put another case. If a man charged with a crime committed in a territory can be carried to a territory two thousand miles distant by a military guard and there tried, what is the situation, Mr. Speaker, in which you stand? You yourself may be arrested; for you are in a territory, and the little remnant of the army here may be charged to carry you to New Orleans. Your privilege will not extend to felony or to a breach of the peace.

I will put another case. A member of this House may be carried to the marine barracks. You may issue your writ, and your Sergeant-at-Arms make return that the member is carried to Orleans; and as accidents will happen, he may be knocked over by the boom, and there is an end of him. Will you sit down contented with such a doctrine, that the civil authority shall be put at defiance by the military, and the citizen shipped off to New Orleans, there to be tried by a dependent tribunal?

I avoid saying any thing as to plots. I have no doubt, however, of this plot, and I have no doubt of the existence of a plot also in 1788, and down to the year 1795. But in what way has every free people become slaves? The common recipe is—take a quantum sufficit of plots and of military force, always kept ready for the purpose, and the end is accomplished; and I say this must, if you give sanction to such acts, be the death of your Government. Has any revolution taken place in the affairs of France, which was not preceded by a plot? Are we sure that time and chance, which happen to all men and all nations, may not happen to us?

One word on the subject of the quarter from which this motion comes.

An attempt is made to sound the tocsin, and to discipline the House under the banners of party, on a constitutional question. Where the violation of the constitution is not pretended to be denied, it is expected that the House is to be rallied under the banners of party. The gentleman who brings forward this proposition is charged with the sentiments he entertained some years since; but it is the misfortune of this argument that it cuts two ways; if you resort to the sedition law, the alien law, and other acts of those days, you have no right to refuse gentlemen now the benefit of their principles. The people of this country, after two or three juggles of this kind, will be apt to conclude that federalism or republicanism depends on being in or out of the Government; that those who are in are good federalists, and those out republicans; they will find this out, if they do not suspect it already. A few such instances, and the scales will fall from their eyes. You quote the most detestable instances of a violation of a law which have taken place in time past—no, this is the most detestable of all—and yet you gravely tell the people that you will not listen to men who advocate rights thus infracted. The people of the United States will eventually listen to them, if you pursue this course; and it is because I do not wish them to listen to them, that I do not wish to see them foremost in such a cause as this. It is a disgrace to the old republican party, if indeed it is yet in existence, that the writ of habeas corpus should find its first defenders in that quarter. There is on this subject one melancholy fact, and that is—that in 1797 the federalists were in a majority; in 1807 the republicans are in a majority—has the generation of 1798 passed away? No; the same people that were in 1798 federalists are in 1807 republicans, and that is the clue to the thing; all those who swim with the tide come over to the stronger side.

In my mind it is high time to make a provision for a complete casus omissus of power delegated by the constitution. You have found members this session voting to make a violation of a provision of the slave bill death, on the broad principle of natural right; and yet would you do less for a violation of the liberty of your citizens, when you are bound to protect them, not only by natural right but by conventional institutions and your oath? If a military man should take, I will not say a member of this House—but any one of the miserable citizens who inhabit this place—and escort him under military guard to New Orleans—I say the military man who would do such a thing ought to be precipitated from the top of the Capitol. I would teach the military that they are to be subordinate to the civil power, and that if they undertake to violate the civil institutions of their country, they should pay the penalty of their lives. If you do not guard the people from such an excess of military power, the time will come when you will be kicked out of doors at the point of the bayonet. We have seen the Legislature of a nation as enlightened as ours, treated in this way. There is one institution on which I fear we have placed too great a reliance. I have been always attached to the press, and desired to see it free and unfettered; and I have gone uniformly with those who supported this opinion, even in the time of alien and sedition bills, and not merely in a period of sunshine. Experience has proved to us that the press in the hands of a tyrant may become one of the firmest supports of his authority; and if there shall be a collision between the press and the bayonet, it needs no prophetic spirit to say which will kick the beam.

Mr. M. Williams said he would state one or two reasons why he should vote for committing the resolution. As he understood the subject, the only consideration at present was, whether it was necessary to make an inquiry into the expediency of amending the laws on this subject. It had been endeavored to make this a party question; he considered it of no importance from what quarter a proposition came. If he thought it right, he should vote for it. The gentleman from Tennessee has observed that the constitution has made an ample provision on this subject. It appeared to him that the constitution had only secured the writ of habeas corpus; no penalty had been attached to its violation, and hence the necessity of some legislative provision to answer this purpose. The same gentleman has observed, that there is no necessity for legislative provision, as the statute book is already crowded with cases; but, Mr. W. said, he believed there was no legislative provision for the violation of the writ under the authority of the United States. It had been also said, that a provision under the Government of the United States would abridge the rights of the States; but, Mr. W. said, he could not see how this remark applied. He did not wish for any abridgment of those rights. The States undoubtedly had a right to pass laws relative to the execution of the writ within their jurisdiction, and Congress had a concurrent power to regulate it under the jurisdiction of the United States. Mr. W. said, in his mind many arguments had been urged which were irrelevant; such as the conduct of the commandant at New Orleans, and of the persons brought before the court. It had been said that this was an improper time to bring the case before the Legislature; but, gentlemen would find that new cases had very frequently given rise to new laws; and the present case clearly showed the necessity of some new provisions. Whether the persons implicated in this conspiracy had committed treason or not, was not the inquiry; the only question was, whether any further legislative provision was necessary to secure the writ of habeas corpus. He would ask, whether in this instance the constitution had not been violated by the interposition of the military authority? Whether the persons arrested were guilty or not, was not for the House to say. Mr. W. said he did not think that the reference of this resolution would have any influence on the court; as an injury by the House would impose censure neither one way nor the other.

Tuesday, February 19.

Writ of Habeas Corpus.

Mr. Bidwell.—The motion, as now amended, embraces two objects: to provide additional penalties for the security of the privilege of habeas corpus, and to define the powers of the Supreme Court as to issuing writs of habeas corpus. It is proposed to appoint a select committee to inquire into the expediency of making these provisions. Each member of this proposition is expressly predicated, by its mover, upon particular recent occurrences; the one, upon the conduct of General Wilkinson, in seizing certain persons at New Orleans, and sending them to the seat of Government, under military arrest; the other, upon the late determination of a majority of the Supreme Court to exercise jurisdiction in a case of habeas corpus, for the discharge of some of those persons. With respect to both of these objects, and also as it respects the propriety of referring the question to a select committee, I am opposed to the motion, and hope it will not be adopted.

But, sir, is it necessary or proper, if we had leisure, to pass a law on the subject, at the present time? The principal argument in favor of it has been drawn from the recent transactions at New Orleans. We have been told that the constitution has been violated, and that Congress ought to act on the occasion; otherwise, we may become familiarized to encroachments on the constitution, until all respect for that sacred instrument may be lost. Sir, this argument is a two-edged sword. It cuts both ways. If, for a temporary purpose, the trumpet of alarm is sounded, when there is no real danger; if, by way of appeal to the public, we are urged to legislate upon a suggestion that the constitution has been violated when there has been no such violation, or none but what the ordinary course of law is competent to correct and redress; we may be familiarized to charges of that nature, until we become insensible, indifferent, and disinclined to interpose, when legislative interposition may be really necessary.

For the sake of argument, let it be admitted that a constitutional right has been infringed. Does it follow that Congress ought to legislate on the occasion? Take the instance which, in order to bring the subject home to ourselves, has been put. Suppose a member of this House, in contempt of his constitutional exemption from arrest, except for treason, felony, or breach of the peace, is arrested on civil process, and imprisoned in this territory, or carried out of it, if you please, under arrest; would Congress feel themselves called upon to pass a law, in consequence of such infringement of a constitutional privilege? No, sir. The legal remedies already provided would be sufficient. The party injured might sue out a habeas corpus for his discharge, in the first place, and afterwards commence his action for damages, to be assessed by a jury, upon a full consideration of all the circumstances of aggravation or alleviation; and the officer or person who did the injury would be still further liable to be indicted by a grand jury and tried and punished by the proper tribunal. These, sir, are the existing provisions of law. And I am not willing to disparage the right of jury trial, so solemnly recognized in the constitution, by treating it as inadequate to give relief. It is a privilege by no means inferior to the habeas corpus. It is one, indeed, without which that cannot be enforced. It is a legal and constitutional remedy; and no friend to our laws and constitution will attempt to degrade it. I am not pretending that it is perfect. Imperfection is stamped upon every thing that is human. Courts and juries are not infallible; they are not inaccessible to those passions and prejudices which are common to men in all situations. But they are not more liable to the influence of erroneous or improper considerations than legislatures are. No safer institution than that of trial by court and jury, has been devised to redress infractions of personal rights. It is open to all persons who think they have sustained an injury, and is as free from objection as the lot of humanity will admit.

Has any officer refused to serve a writ of habeas corpus? No such refusal is pretended. Has any person, on whom a writ of habeas corpus, from a court or judge of the United States, has been served, refused to obey it? No instance of such disobedience has been officially communicated to us, according to my understanding and recollection of the official communications. It has, I am sensible, been charged upon General Wilkinson, and, in proof of the charge, a gentleman from Vermont has read, from a newspaper, that officer’s return to a writ granted by the Territorial court of Orleans. For it is to be observed, that the application was not made to the court of the United States there, but to that of the Territory. The General’s return was expressed in the language of a soldier, and not of a lawyer. It did not state, with technical precision, whether Dr. Bollman was within his control at the service of the writ. I may be incorrect, for I have not particularly investigated the subject, and it may not be very material, but I understand the fact to have been, that Dr. Bollman had been sent from New Orleans, on his way to this city, when the writ was served on General Wilkinson. This appears from the further proceedings of the court, as published in the same paper, from which the first return has been read.

[Here a message from the President was received and read, after which Mr. B. proceeded.]

When the message was announced, I was noticing an extract from the proceedings of the Territorial court at New Orleans, which I now beg leave to read.

“In the Superior Court of Orleans, December 26th. In the matter of the Habeas Corpus ad subjiciendum, directed to General Wilkinson, to produce the body of Dr. Erick Bollman; on motion of Mr. Livingston (in behalf of Mr. Alexander, the attorney upon record) that General Wilkinson be required to make a further and more explicit return to the said habeas corpus, or show cause to-morrow morning, at the opening of the court, why an attachment should not issue against him: It was ordered, that the rule be granted, and that a copy thereof be immediately delivered by the sheriff to General Wilkinson. On the next day, on motion of Mr. Duncan, in behalf of General Wilkinson, and on reading the following, as an amended return to the above-mentioned habeas corpus:

“The undersigned, commanding the Army of the United States, takes on himself the responsibility for the arrest of Dr. Erick Bollman, on a charge of misprision of treason against the United States, and has adopted measures for his safe delivery to the Executive of the United States. The body of the said Erick Bollman is now, and was at the time of the writ of habeas corpus, to which this return relates, out of the possession, power, or custody of the undersigned.

‘JAS. WILKINSON.’

“Ordered, That the same be received and filed, and the rule nisi of attachment be discharged.”

The fact is here stated as I have understood it. Dr. Bollman was on his passage to this place, before the writ of habeas corpus, sued out by his friends, was served on General Wilkinson; whose transaction, therefore, in whatever light it is to be viewed, in relation to the laws and authorities of that Territory, was not a disobedience to this writ of habeas corpus, but a military seizure and transmission of a person from New Orleans to Washington, under an avowed responsibility, and upon the principle that it was necessary for the public safety. At any rate it does not appear to have resulted from a want of penalty, or any defect whatever in the habeas corpus laws of that Territory, whose courts and laws, and not those of the United States, were resorted to for relief.

One case has been mentioned in the newspapers, in which a writ of habeas corpus, issued under the authority of the United States, was not obeyed. An officer at Charleston, South Carolina, it is said, instead of producing Dr. Bollman, in obedience to a writ from the district judge, transmitted him to Washington, because the orders of General Wilkinson, in general terms, directed his transmission, without any particular instructions respecting a habeas corpus. The officer seems to have considered it his duty to obey the orders of his commander, without regard to any interfering lawyer or civil process. I am of opinion that he erred, and has exposed himself to punishment, as well as to damages. But his error does not appear to have been wilful, nor to have resulted from any defect in the law, but from an erroneous military principle. The same principle, however, has, at the present session, found very respectable advocates on the floor of this House. Yes, sir, in the case of Captain George Little, gentlemen held that a military or naval officer is not bound to take notice of any law in opposition to, or even in explanation of, the orders of his superior. It will be recollected that I opposed that doctrine, although I admitted that an officer, civil or military, acting contrary to law, through misapprehension of its meaning in a doubtful case, or in some great emergency not provided for by law, might be equitably entitled to indemnification. Damages had been recovered against Captain Little, for doing an illegal act, in pursuance of orders from the late President of the United States, and Congress have passed a law to indemnify for those damages. The Executive orders, under which he claimed, taken in connection with the law, which was referred to in the orders, did not appear to me to warrant the transaction, which has been adjudged to be illegal, and for which the damages were recovered. I did not, therefore, vote with the majority in favor of his claim. But gentlemen who supported it on the ground I have mentioned, will, if they are consistent, be so far from inferring a necessity for further penalties, from the case of Captain Kaltiesas at Charleston, that they will be ready to grant him an indemnification, if he shall be found to have acted honestly, according to his understanding of his orders. By indemnification, I do not mean an act of indemnity, in the British sense of the term, pleadable in bar both to an action for damages and to a prosecution for an offence. Such an act might here be considered unconstitutional and void. A remuneration for damages incurred has been the mode of indemnification adopted by our Government.

On this subject an example has been quoted for our instruction, from English history. It was a proclamation, issued in derogation of law, by the King, with the advice of the celebrated Lords Chatham and Camden, on a great national exigency. The measure was generally approved and applauded throughout the nation. The Parliament were ready to sanction it. But, instead of accepting an act of indemnity, those Ministers undertook to justify it, as legal, upon the principle of necessity. In that they erred. When the question came before the court for judicial consideration, Lord Mansfield decided against the doctrine of his great political rivals, and I think his decision was correct. As a judge or a juror I should have condemned them. But, sir, if instead of justifying the proclamation, as legalized by State necessity, the Ministers had acknowledged their responsibility for it, and thrown themselves upon the justice of their Government, had I been a member of the British Parliament I would have voted them an indemnity. Their error consisted, not in doing an illegal act for the public good, but in doing it under color of legal authority, when the law did not authorize it. Whether General Wilkinson’s conduct has been correct or erroneous in other respects, he has not fallen into this error of those celebrated English statesmen. He has not pretended that, in seizing the persons alluded to and transmitting them to the seat of Government, he was justified by orders or by law. He has not cast the responsibility upon any other officer or department of Government. He has explicitly assumed it all to himself, and put himself on the candor of his country for indemnification. If it shall appear that he has acted honestly, for the safety of the Army and the preservation of the Union, under the pressure of such urgent necessity as he professes, I trust he will be indemnified. On the contrary, if it shall turn out, upon future investigation, that he has acted unnecessarily and wantonly, from motives of malice or resentment, he will undoubtedly be left to suffer the consequences. I give no opinion of the merits of his conduct. I hope the House will not, at present, give an opinion, or adopt any measure calculated to have a bearing on the question. It is premature. We have not sufficient information. We have not a statement of all the facts, nor the evidence in support of the facts, which are stated. In due time an inquiry will be proper, and doubtless will be instituted. General Wilkinson will probably demand it himself. But it would be unfair and unjust, as well as impolitic, to anticipate it.

Mr. Quincy.—So long as an intention appeared to make this a party question, I had no inclination to intermeddle with it. The subject seems to me to be of too high a nature, and too deeply to be connected with the rights and liberties of us all, to be examined under those narrow and temporary views which party spirit necessarily introduces. Since the discussion has assumed a milder aspect, I shall offer a few considerations; limiting myself to a very simple and brief elucidation of the subject, in a point of view which no other gentleman has taken of it, as yet, on this floor.

I cannot agree with those gentlemen who maintain that in the arrest and transportation of Bollman and Swartwout, they can see no violation of the rights of individuals. The privileges of the constitution are as much the inheritance of the humblest and the most depraved, as of the most elevated or virtuous citizen. To be seized by a military force, to be concealed and hurried beyond the protection of the civil power, and to be sent a thousand miles for trial, in a place where the crime charged was not committed, I humbly conceive are violations of individual rights, and of the constitution. I am not, however, prepared to say, that in no possible case they can be pardoned; nor, with the gentleman from Virginia, (Mr. Randolph,) that in no case, I would consent to indemnify a military commander for making such an arrest. A case might exist when it might be the duty of a legislature thus to indemnify. I agree, however, that it must be an extreme case, and that the party to be indemnified must evince that he had himself no voluntary agency in producing the state of things which made such an unconstitutional exercise of power necessary to the safety of the State. I give no opinion concerning the conduct of General Wilkinson. The events which happened at New Orleans have no other relation to the subject before the House than this: they have turned the attention of reflecting men in this nation to the nature of the security they possess against similar violence; and, in common with other reflecting men, it has become our duty not only to understand the nature of that security, but also to supply, as soon as possible, any deficiencies we may discover in it.

The only question is, Have this people the privilege of the writ of habeas corpus secured to them as fully and effectually as the constitution intended, and as wise and prudent men ought to desire? I answer, unequivocally, they have not. So far as relates to cases under the exclusive jurisdiction of the United States, we have virtually no writ of habeas corpus. And for this plain reason, that we have none of the sanctions of the writ; we have none of those penalties, without which the writ of habeas corpus is a dead letter: particularly in all cases in which the state of party passions, or of any predominant power, leads to the oppression of an individual.

The writ of habeas corpus and the penalties by which it is enforced, and in which the great benefit of the privilege consists, are distinct things in their nature. The former was known to the English common law, and although, at all periods of English history, it was held a very precious right, yet were its provisions found wholly inefficacious against arbitrary power, until after the statute of Charles II. called by Englishmen their second Magna Charta. This statute gave penalties unknown to the common law. If a judge refuses to grant, or an officer refuses to execute the writ, he is liable to a penalty of five hundred pounds sterling, and similar sanctions annexed to other neglects of the precept. The House will observe, that all these penalties are securities given to personal liberty, additional to those which exist at common law, and are not substituted for them. These penalties are annexed for disobedience to the writ, not as indemnification for the injury. All the other remedies against the judge, or the party imprisoning, remain unimpaired.

The question recurs, does the Federal Constitution, by securing to us “the privilege of the writ of habeas corpus,” secure to us those sanctions of the writ which constitute in England its characteristic security? If the constitution had re-enacted the statute of Charles, there could be no doubt. But will gentlemen seriously assert, that a penal statute of another country can, by construction, be declared the law of this, so as to make our citizens obnoxious to its penalties? If that statute be our national law, how was it obtained? Re-enacting statute we have none. And “the United States, as a Federal Government, have no common law,” if we give credit to declarations daily made upon this floor, or respect the opinions of one of the highest law authorities in this nation. I refer to the opinion of Judge Chase, in the case of the United States against Worrall. 2 Dallas, 394.

This view of the subject is certainly sufficient to satisfy this House, that their security for this great privilege is, at least, uncertain; and is not this reason enough, for this Legislature to commence an inquiry into the nature of that security, and the additional provisions it requires? This at present is the only question.

But the gentlemen ask “What need of further penalties? If the judge refuses the writ, is there not impeachment? Against the person illegally imprisoning another, is not an action for damages?” I answer: Both these securities for the personal liberty of the citizen existed, and do still exist in England, as fully as they do here, yet was it ever before heard that these were reasons against enacting that celebrated statute of Charles, or were ever urged as evidence that its provisions were needless, or useless? The penalties of that statute are guarantees of the liberties of the citizen, additional to those which result from the law and the constitution. The principle of that statute is, to rest satisfied with nothing short of the actual liberation of the person from illegal imprisonment, in the shortest time possible. To this end all its provisions tend. It will not leave a citizen to languish in prison, in expectation of the result of the slow progress of legislative inquisition, or for the purpose of ultimately qualifying him to receive a heavy compensation in damages. Impeachment is always a dubious, and an action for false imprisonment often an inadequate security for the observance of the writ of habeas corpus. Great violations of the privilege of this writ can never happen, unless in times of great violence. In such times, what hope of an impeachment against a judge who abuses his authority in coincidence with the views of a prevailing party? And as to damages, is personal liberty to be estimated by money? And if it were, what certainty that the person guilty of the illegal arrest will be competent to pay the damages recovered? In the case of seizure by a military power, can it ever be expected, from the universal pecuniary deficiencies of the soldiers, that damages will be realized, even should the civil arm be competent to enforce an execution?

The penalties affixed by the statute of Charles, on the contrary, assure the obedience of the courts and officers of justice, independent of all party influences which may happen to prevail in the nation, and secure personal liberty by pecuniary perils, suspended over the heads of men, whose situation in society is such as, in general, makes the attainment of the penalty certain, should it be incurred. Upon the whole, those who oppose the present motion seem to me to be reduced to this dilemma; either they must acknowledge that they are content that the citizens of these United States should possess less security for their liberties than the subjects of the law of England enjoy for theirs, or they are reduced to the necessity of adopting the doctrine that the statute penalties of another country may by construction become the laws of this nation; than which, I can conceive nothing more monstrous or absurd.

In this discussion it has been my wish to avoid all notice of the party and personal invectives which have been uttered. The question is too important to be mingled with feelings and passions of these descriptions. And the circumstances of the times and of the nation, seem to me to claim from us a contempt for these local and ephemeral distinctions.

Mr. Newton.—I presume I may be permitted, notwithstanding the motion has been tried, to go fully into the subject before the House. I hope this House will not indefinitely postpone it. If ever there was a subject within the attention of an enlightened Legislature, it is the subject before us. Every subject that regards the liberty of the citizen should be received with reverence and respect by the votaries of liberty. If we can better the situation of the people of the United States, and keep from them, under all circumstances, the hand of oppression, it is our duty to do it, and to pay attention to whatever is likely to eventuate in such an issue. I shall not consider this case as the basis of an impeachment. The only true inquiry at present is, whether the writ of habeas corpus is sufficiently fortified by legislative provisions? I will not commit my understanding so far as to decide on the conduct of the Commander-in-chief. If he has done wrong, let him be answerable to the laws of his country; much less will I talk of indemnifying him. For this reason, because the jury before which the case may come, may, under such circumstances, have regard, not to his circumstances, but to the Treasury of the United States.

My friend and colleague, from Virginia, has offered a most important amendment to this resolution. The Supreme Court of the United States, after having this all-important case for a long time under advisement, and after an argument from the bar, are again afloat on the ocean of uncertainty, have started some new doubts, and have asked the gentlemen of the bar to come forward with a new argument. If this is the fact, does it not show the necessity of our attending to the subject; and of some new legislative provisions upon it? I am for defining the power of our courts. I wish to understand the extent of their prerogatives; and particularly whether they have appellate jurisdiction in criminal cases; before whom criminals are to be brought; who are to grant writs of habeas corpus, and admit to bail?

These are all considerations of importance, and constitute the reasons which induce me to vote for referring this resolution to a select committee. But, say gentlemen, we cannot mature this subject this session. Perhaps so; but is this a sufficient reason for not commencing the investigation, for comparing our ideas on the subject, and going forward as far as we can in our progress towards a decision? I, for one, shall always be in favor of an inquiry into subjects that have a reference to personal liberty.

This subject has been spread over an immense extent of ground. The single point, however, at issue, is, whether we will commit this resolution, in order merely to obtain correct facts and information, which shall present the subject in such a form as shall enable us to act understandingly upon it. I am not at present in favor of acting definitively upon it; but merely for inquiry. So circumstanced, I presume our proceedings cannot injure any individuals implicated in this business, as nothing we can do can have a retrospective effect. These are my reasons for voting in favor of the present motion.

Mr. J. Randolph.—There has been a dispute in the world from time immemorial between wit and dullness—between imagination and judgment. So we have been told, though some who cultivate the sceptical philosophy dispute it. But this impression has been so long attempted to be made, that there is not a precise or formal coxcomb that does not on the score of dullness arrogate to himself judgment and profound wisdom. While I am willing to allow that declamation, or the powers of an effervescent imagination, are no evidences of wisdom, the House must admit that the mere dullness of a special pleader without his accuracy does not imply any pretensions to knowledge. The truth is, that on this as on other subjects, it has been my misfortune to come to the House too unprepared. I knew nothing of the subject until it was brought under discussion. I got up yesterday, as I have to-day, to say what first came into my head, and in this way I hope I shall be permitted to go on.

I consider the whole of this business as one of the most unfortunate kind that could have happened to the United States. If we had acquired Louisiana by force of arms or conquest, we could scarcely have inspired the people of that country with greater indignation than by these events—in which it is yet to be seen whether these people are at all concerned; or whether they are not standing like sheep, suffering the wolves to pass without disturbance—events which must sow the seeds of lasting misfortune, unless healed by a timely interposition of the Government. And nothing can have a more fatal effect than any thing done by this House, or the other part of the Government, to sanction the conduct of the Commander-in-chief, taking it to be such as is ascribed to him. As a member of this House I am free to give my opinion of what would restore peace to that country—though out of doors I might not do it. The first step ought to be the immediate recall of every man directly or indirectly concerned in this business. You can hardly suppose, sir, that I look forward to be made their Governor, or desire on my recommendation to introduce a friend to that place. But I have no hesitation in saying that unless some such step be taken, the attachment of that country to the United States is lost for ever. I would take such a step boldly—I would know nothing of their little disputes; I would act with the authority of a venerable parent, who, on returning home, found his children by the ears. I would correct them all, I would discountenance at once all such intrigues—I would recall every man who has directly or indirectly participated, or is suspected of having participated in them—I would, in short, rub out and begin again. It is an extremely unfortunate thing that the people of New Orleans, for the most part speaking the French language, a great part of them attached to the Crown of Spain—transferred to the United States by an honorable purchase—told they were about to taste the sweets of a Government of laws—told that arbitrary notions and lettres de cachet were to be proscribed—that the constitution was not to be departed from, but that they were to enjoy all the blessings of citizens of the United States—it is extremely unfortunate that New Orleans should be the first place in which a lesson of military despotism should be taught. I deem it extremely unfortunate—it cannot tend to attach those people to the United States; it will, however, have another tendency—it will prevent every man of character from emigrating to that country, and instead of mixing the Americans with the French, the latter will be kept as a distinct class. For will any man, having the least regard to his rights, go to a place where he will be seized by a military commandant? Suppose, Mr. Speaker, such a thing had taken place in your country or mine. The military would not at this period be before the court—the spirit of the country would have long since settled the question. I recollect in 1798 or 1799, when the officers of the army were following their legal avocation of enlisting recruits, such was the spirit of detestation in which a standing army was held in my district, that these men were obliged to break up and move off. That spirit would scarcely endure the legal act of a man acting under legal authority, and yet we have now an apology for men acting in direct contravention of legal authority. Will any man point out a good cause for this change?

The writ of habeas corpus is the only writ sanctioned by the constitution. It is guarded from every approach except by the two Houses of Congress; and yet this writ, thus acknowledged, thus specially designated, this second Magna Charta, as it has been called, is to be put on the footing of a common trespass. Really, when a man tells me that if imprisoned I may get damages, it requires no ghost to come and tell us that this may be done even without the writ of habeas corpus. But will gentlemen point to any legislative sanction by which the execution of this writ is guarded? Perhaps action on the case might be sustained for disobeying it; but suppose a judge should deny it. Impeach him, say gentlemen. But will gentlemen rely on that? That affords no certain punishment, and an uncertain punishment is inadequate. We want a certain and adequate remedy.

I stated that I would make a military officer, acting under his own responsibility, acting as commander-in-chief, punishable with death for such an infraction. Did I, in saying so, also say that I would punish an inferior officer with death? Will any man deny that a military character arraying himself against the constitution of his country is worthy of death? I say he is a traitor. A commander-in-chief of an army, who, on his own responsibility, puts the constitution and laws of his country at defiance, is a traitor; and, supposing the case stated at New Orleans to be correctly stated, the Commander-in-chief is as much a traitor as any other man concerned in the conspiracy. Who are these traitors? Burr & Co. What are they about to do? To put down the civil authority by military force; and is there any substantial difference whether the civil authority is trampled under foot by Burr and his banditti, or by a commander-in-chief and his regular army? I will go farther. Suppose these measures for putting down Burr shall eventually prove to have been measures for putting up somebody else, in what will these men differ? In nothing. If the commander of an army, to give himself a false eclat, shall trample the constitution under foot, shall go a certain length with conspirators, and finding his ground no longer tenable, shall determine to make up in zeal what he wanted in fidelity, he is guilty of treachery to the constitution and laws—he is guilty of more—he is guilty of violating the principle respected by knaves—the principle of fidelity to each other.

The gentleman from Massachusetts (Mr. Quincy) has stated the difference that exists between the right of the writ of habeas corpus and the remedy. He has correctly stated that it is not intended as a remedy—not to allow an action for false imprisonment—but to prevent false imprisonment, and therefore that it ought to be guarded by sanctions. But the gentleman has omitted to mention one circumstance, which is, that in England the writ of habeas corpus is secured by the sanction of death. And is our attachment to liberty less than that of England? I say that a Chief Justice of England for refusing to issue a writ of habeas corpus, may be impeached, taken to Tower Hill and decollated. If there had existed the privilege of the writ of habeas corpus in England at the time of the impeachment of Strafford, could there have been a charge more strong than a settled design to do away that privilege? In England also it is guarded by the power of attainder. Thank God! we have not that feature in our constitution. But if the same spirit pervades that country now which once did, nothing would sooner pass a bill of attainder, through the two Houses of Parliament, than a known and wanton invasion of this privilege. But fortunately our constitution has denied to us this power; and it is because we cannot pass bills of attainder, and because judgments on impeachments do not affect the life, that it behooves us to guard this important principle with some more solemn sanctions than it now possesses.

Mr. J. Clay said, before the question was taken, he would mention one or two points that went to show the necessity of a reference. He understood that one of the persons arrested by General Wilkinson had been landed on an island near Charleston, and, on the issuing a writ, the officer had refused to obey it. He would ask whether this was not a violation of the writ of habeas corpus that required a remedy by law? Mr. C. said he always viewed it as a matter of regret, that questions of this kind should be taken up on party ground. He considered such a suggestion, on the present occasion, as a mere trap to get a few votes. They were told of the dark times when alien and sedition laws were passed. If, however, under the alien law, men might be deported, gentlemen should recollect that it was according to law—that there was an express statute that justified the measure. Mr. C. said he considered the kidnapping alluded to by gentlemen as a gross violation of the habeas corpus, and would be glad to know whether sending a man to Baltimore from Orleans, was not as gross a violation of principle as sending him from this place to Orleans? Mr. C. concluded by observing that he considered it a very unfortunate thing for any gentleman of talents to be educated at the bar. So many distinctions were there taken, that a man of his plain mind could scarcely see any thing. He should, however, adhere to the constitution, and would ask whether a military arrest was not a gross violation of it; and whether there ought not to be some exemplary punishment to guard against it?