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Henry Cruse Murphy.

Remarks of Hon. Henry C. Murphy, of Kings County, upon that portion of the message of His Excellency Governor Seymour, relating to arbitrary arrests, delivered in the Senate, March 5, 1853 online

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Online LibraryHenry Cruse MurphyRemarks of Hon. Henry C. Murphy, of Kings County, upon that portion of the message of His Excellency Governor Seymour, relating to arbitrary arrests, delivered in the Senate, March 5, 1853 → online text (page 1 of 2)
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R E M A K K S



OF



HON. HEMY C. MURPHY,



OF KINGS COUNTY, *

UPON THAT PORTION OP THE MESSAGE OP HIS
EXCELLENCY GOVERNOR SEYMOUR,

BELATING TO

AEBITEAEY AEHESTS,

DELIYEEED IN THE SEJ^i^ATE,



Marcli 5, 1863.







.-. x



mOi^^**^ ^' '



^'ilHtOT VM



ALBANY:

COMSTOCK & CASSIDY, PRINTERS.

1863.



question of what is called arbitrary arrests, within
the State of New York ; for it is to that action within
oar own State limits that the question is presented
to our consideration.

There are two branches of the enquiry somewhat
involved together but yet essentially distinct — ■
arjrests by State warrant and the denial of the privi-
lege of the writ of habeas corpus. It is undoubtedly
true that if the writ of habeas corpus cannot be com-
plied with so that the cause of detention may be
inquired into, the means of arrest become immaterial
to the subject of it, and whether legal or illegal, its
effect is all the same to him. Still there are two dis-
tinct questions, involved in the consideration of the
subject and so the Govenor evidently regards them,
I purpose to treat them, therefore, separately. There
are however, some considerations belonging in com-
mon to both of them upon which X will first say
a few words.

In both cases there is an exercise of power by the
President, and the enquiry becomes proper, what is
the nature of his authority ? This may briefly be
answered by stating what he is and what he is not.
He is the mere creature and instrument of the
Constitution. The government of the United States
itself is a limited organization made by a free people
for their own purposes. It is confined in all its



powers. Its ditferent departments are limited and
restricted to particular duties ; and the executive is
as distinctly confined in its authority as the legislative
or judicial departments in theirs. Each and all can
exert such powers only as the people have thought
proper to entrust them with. On the other hand, the
President is no crowned head. He takes no preroga-
tive by hereditary right or by prescription, or as the
advocates of monarchical power claim ex jure divino.
He is not the fountain of power. He is only the
recipient of it, and of just so much and not a particle
more as is expressly conferred upon him. He has
no reserved authority. All the powers not expressly
given to him or prohibited to the States are reserved
to the people and the States.

These are cardinal principles in our government,
differing in that respect" essentially and fundament-
ally from most others. The President has no
more power outside of the Constitution than the
humblest citizen who treads American soil. When
he transcends the authority expressly conferred upon
him by that instrument, his authority in that regard
is null. It may be disregarded and defied, and
should be rebuked. He becomes an usurper, — worse
than a dictator; Your dictator had at least the sem-
blance of authority. It was expresslyv conferred
upon him by the Senate and it was, with some regard



6

to popular rights, limited to six months. But the
President who by his mere motion assumes for the
period of his term the power to do acts in derogation
of life, liberty, and property, has not even the justi-
fication of a dictator.

It was indeed against the exercise of powder such
as claimed by the President in the cases which are
the subject of our present consideration' that the
colonies rose against the King of England. Among
the causes set forth in the Declaration of Indepen-
dence, for taking up arms it is enumdrated that
the King of Great Britain had " affected to
render the military independent of and superior to
the civil power," and had combined with others " to
abolish the free system of English laws in a neigh-
boring province, establishing therein an arbitrary
government so as to render it at once an example
and fit instrument for introducing the same absolute
rule in these colonies." How fearfully parallel are
the causes of complaint now urged against the Fede-
ral Administration by the people of the loyal States.

What is true as to the limitation of the power
of the President is also true of the limitation of the
powers of Congress. Its enactments, beyond the
authority conferred upon it by the Constitution, are
utterly null. The Parliament of Great Britain,
whence we derive our notions of liberty, declare in



connection with the King, what the Constitution
of that nation is. Practically they can alter, enlarge,
or abridge its unwritten provisions adapting them to
the change of circumstances in the country. But our
Constitution is written. It is fixed, and can only be
changed by the people themselves, in whom all power
not delegated is reserved, whatever may be the state
or condition of the country. Thus Congress can con-
fer no power upon the President which it is not
authorized expressly by the Constitution to do.

In determining, therefore, the authority of the
President we must resort to the fundamental law, to
ascertain his powers, whether they are claimed by
him from the Constitution directly or to be conferred
upon him by act of Congress. No circumstances in
the condition of the country, no necessity can confer
upon him an iota of authority beyond what is found
there. It matters not whether it be a time of
peace or war, of prosperity or adversity, of concord
or insurrection. That instrument was intended to
embrace every condition of the country, and in my
opinion, amply provides for all, and against all ; and
one of its principal merits is that it is thus intended
to step in and protect the people in times of disorder.

There is another general consideration to be
borne in mind. Our revolution was undertaken, our
independence achieved, and our Government formed



for the purpose of securing certain inalienable rights
which our fathers claimed, and among them were
those of property, life, liberty, and the pursuit of
happiness, who claimed them as the heritage of
Englishmen. They declared them not only sacred
but inalienable, and so jealous were they of them
that while they expressly reserved to themselves all
powers not conferred upon the Government by the
Constitution, they required amendments to that* in-
strument as originally drawn, expressly guaranteeing
the provisions of Magna Charta, and the bill of rights
established in the revolution of 1 688. These guaran-
tees everyone can read for himself, but briefly stated,
they are the right of conscience in religion, freedom
of speech and of the press, trial by jury, and arrest
and imprisonment only according to the course of
the common law. And lest the enumeration of these
rights might be interpreted to the prejudice of the
great principle that all rights and powers not granted
by the Constitution were reserved to the people, it
is expressly declared that the naming of these rights
in particular shall not be construed to deny or dis-
parage others retained by them. Arbitrary power
is as carefully provided against as human ingenuity
could devise, and we discover that one of the princi-
pal objects in view is, to cut up by the roots th6 vile
system of arrest and imprisonment by executive



9

authority and to vindicate and perpetuate beyond
aU peradventure the rights of man against the pre-
tensions of prerogative on the part of Government.
With these allusions to the nature and powers of
the Government and the natural, inherent and in-
alienable rights of the citizen I pass to the considera-
tion of the first question proposed. Citizens of this
State, where no insurrection or invasion has taken
place, who are not in the military service, have been
arrested and imprisoned and taken from the State
without warrant of any court or magistrate, by the
arbitrary order of the President acting through the
State or War Departments or other subordinates. It
is the exercise of such authority that the Governor
condemns, and the people of this State, at the
late election, among other acts of the Federal Gov-
ernment, rebuked. Now, sir, while the arrest itself
is properly an executive act, the order of arrest is a
judicial one. These two powers are distinct. They
do not, cannot and should not be in the same depart-
ment. Combined in one tyranny is the result. The
founders of our Government particularly guarded
against their being exercised by the President. Thus
the Constitution declares that "no Twrants shall issue
but upon probable cause, supportefty oath or affir^
mation," that " no one shall be held to answer for a
capital or otherwise infamous crime unless on a pre-



10

eentment or indictment of a grand jury," and that
" no person shall be deprived of life, liberty .or pro-
perty without due process of law." All these provi-
sions look- to judicial investigation or judicial
action before an arrest can be made. Has the
President any right to determine the judicial point
of probable cause ? Does the common law permit
any warrant to issue except by the magistracy ? If
* not, and it seems to be too plain for argument, then
where is to be found any judicial authority in the
executive ? The Constitution expressly declares
that the judicial power of the United States
shall be vested in one Supreme Court and in such
inferior courts as the Congress may from time to
time ordain and establish. This power is thus
placed in an independent branch .of the Government
and Congress is prevented from conferring it upon
any other than tribunals proceeding according to
the course of the common law.

The Senator from the Nineteenth admits the limit
to executive power as regards its civil authority, but
finds a warrant for the proceedings of the President
in his military authority, and in the demands of the
people. In ord|| that I may do him no injustice, I
will quote his language as it is printed :

" Nobody claims that tlio President can do tlicse things in liis
capacity of Chief Magistrate and in time of peace. His powers
Rs civil executive are then limited by the restraints imposed



11

upon him, as such, by the express language of the Constitution.
But the President is not merely the Chief Magistrate and civil
executive of the nation, he is also the Commander-in-Chief of the
army and navy — and the same Constitution wliich makes him
the one, makes him the other also. The same instrument which*
defines and restrains his powers in time of peace a? civil execu-
tive, confers vjyon Jdm every military poioer necessary to save
the Oovernracnt in time of vku\ as Commander-in-Chief?^

"With almost entire unanimity the people called upon tlie
Government to arrest these traitors and prevent their doing-
further mischief. In response to this demand, and to stop the
spread of treason at a moment of imminent peril, the Govern-
ment did order the arrest of a few of the noisiest and •vforst of
these men. And yet as it is J must concede that it has its effect,
for it appeals to the blindest and lowest passions of luiuianity."

In plain terms he justifies the Presid(5nt by the
martial law, and the old and much perverted maxim
that the voice of the people is the voice of God.
Now' the authority of the President whether in his
military or civil capacity has one and the same
origin — the Constitution ; and the only power con-
ferred upon him by that instrument as respects
military matters is that which makes him the Com-
mander-in-Chief of the army and navy. Congress in
the exercise of its granted powers, has given him right-
fully the power to make rules and regulations for
the government of the military and naval forces of
the United States. But these powers areHn terms
confined to persons in the military and naval service.
In this respect he has the same powers in substance



12

as the King of Great Britain, and certainly no more.
When he assumes military authority over citizens
who are not in the military or naval service and, for
the sake of the argument, I will include persons
within any district in actual military occupation
where the civil law is suspended of necessity, he
transcends the authority conferred upon him and is
guilty, in the language of the Governor, of a crime.
It is from no desire to shield crime or to punish
treason that exception is taken to his course. The
laws have provided for such offences and the civil
courts of the State are open to punish offenders. To
attempt to supersede them by the will of the execu-
tive, under any pretence whatever, is to deprive
the innocent as well as the guilty of the protection
which the laws afford them. False accusations,
secretly made and fomented by private malice, reach
the ear of the executive and there is no remedy.
This will of the executive is called martial law.
But martial law cannot exist where the laws are
enforcible, especially under our form of Government.
It is at best, in the sense in which it is now used —
that is, as an emanation of the supreme militaify
authority of the President — a law of necessity, only
applicable when there is no civil rule. The authori-
ties upon this point are incontroyertible. The Gav-
ernor cites that of Lord Coke :



13

" More than two centuries since," he Bays, " that bohl defender
of English hberty, that honest and independent judge, Lord
Coke, declared : " Where courts of law are open, martial law
cannot be executed," and also that " the power that is above the
law, is unfit for the King to ask or us to grant." Are English
laws more sacred, or is English hberty more secure than ours V

This is old authority it is true, but it h,as the
uniform sanction of the beat writers on the subject
since the days of Coke. Without quoting from them
in detail, I cannot forbear citing that of Sir
James Mackintosh as he is quoted by Sir F. Thesiger
in the debate which took place in the House of Com-
mons in 1861, upon the administration of the affairs *
of Ceylon. That eminent lawyer then said, " he
would quote a passage from the writings of one of
the most accomplished philosophers, jurists and
statesmen this country (England) had ever produced —
he alluded to Sir J. Mackintosh. He said :

" When law is silenced by the noise of arijis the rulers of the ^
armed force must punish as equitably as they can those crimes '\
wliich thi'eaten theu" own safety and that of society and no longer. /
Every moment beyond is usurpation. As soon as the law can ■
act, every other mode of punishing supposed crime is of itself cm '
enormous cri/ne.^^ -

This language is almost the same as the Governor
adopts in stigmatizing the character of the arrests
made in this State.

Perhaps it may be objected that this is British
authority only, and has no application to our own
Constitution. Well, sir, although all our notions of



14

law and liberty are derived from England, and we
are therefore justified by the sound rules of argu-
ment in using authorities derived from thence,
here is one not liable. to exception of any kind" and
to the very point and in my judgment conclusive.
It u the solemn judgment of the State of New York
herself. It is the declaration of our State convention
which ratified the Federal Constitution. It is an
explicit document. Among other points of the Con-
stitution considered by it was the military power, and
how the Constitution limited that power. It declares
among other things " that standing armies in times
of peace are dangerous to lijjerty, and ought not to
be kept up except in cases of necessity, and that at
all times the military should be under strict subordi-
nation to the civil power." At all times in contra-
distinction to times of peace. And then in signifying
the ratification- by the people of this State they
declare such to be their understanding of the Consti-
tution in these words :

" Under these impressions and declaring that the rights afore-
said are consistent with the said Constitution and in confidence
that the amendments which shall have been proposed to the said
Constitution will receive an early consideration, we, the said
deleo"ates, in the name and behalf of the people of the State of
New York do by these presents assent to and ratify the said
Constitution."

This is the language not only of the delegates who
had been chosen by the people to express their views,



16

but of sucli men, who were members of the convention,
as John Jay, whom Washington selected from among
the purest and wisest of that day to be Chief Justice
of the United States, as Alexander Hamilton, who
was an aid of "Washington in the war, and who, in
intellectual vigor, has had few equals and no superior
in our State, and as Melancthen Smith, Chancellors
Livingston, Lansing, and Jones, Judges Duane and
Hobart, Richard Morris, Lewis Morris, and not last
or least, George Clinton, then Governor of the State,
clarum et venerabile nomen, who was chosen to preside
over the deliberations of the convention, and whom
you have as the presiding genius of this body. There
he stands before you. Senators, in all the dignity of
his high official position to stimulate you in the path
of duty, and to remind you, in the history of his
own life, that resistance to tyranny is obedience to
God. These men had been tried in the fires of the
revolution ; they understood well, from personal ex-
perience, the exigencies of war, and of a war of
rebellion. They are an authority which not only
are you bound to respect for themselves, but which,
as delegates of the people of this State, seals forever
your lips and those of every New Yorker, from deny-
ing that according to the Consitution the military
authority of the Federal Government is subordinate
to the civil power in war as well as in peace.



16

My honorable friend, the Senator from the Nine-
teenth, says the people were clamorous for these
arrests. Sir, I have a great respect for the opinion
of the people deliberately expressed, but for popular
clamor, none. As a democrat and a republican, in
the broad and catholic sense of those terms and not
in any partizan sense, I bow to their views when
regularly and intelligently expressed, but not as
against law and order. In moments of passion and
in times of turbulence and faction, it is to me but as
the idle wind. Clamor deluged the streets of the
fair and gay and festive city of Paris in blood and
carnage. It brought the Saviour of mankind to the
cross, and bound his holy temples with a crown of
thorns. It is said of that eminent divine and good
man, though great enthusiast, John Wesley, that in
an argument with his sister he claimed for his side
this popular cry — Vox populi, vox del. "Yes,
brother," said the lady meekly, with the sagacity of
her sex which so often penetrates the sophistries and
fallacies of our own, "that means. Crucify Him, Crucify
Him," and the founder of Methodism was silenced.
I have a respect for the decision of the people when
expressed in the forms of law such as we witness now
every day rolling from the ballot box over the State
like the tides of a mighty ocean, in slow and gather-
ing volume and in obedience to the unerring laws of



17

nature and truth, to overwhelm, in its resistless flood
the violators of the rights. Your laws and constitu-
tions are all a protest against popular clamor. They
are intended to protect the weak and feeble against
the violence of the many. They are efficient
and sooner or later will be vindicated and upheld
against the strong arm of power. We hold our
liberties by no such uncertain tenure as popular
demand. There is not authority in the Government
of the United States in obedience to any popular
clamor or otherwise to take from me or you the most
trifling article of property. It cannot deprive the
most abject fellow being of one moment of liberty
except by due course of law. To attempt to do so
is a crime against him, against good order, against
the liberty of a free people. And, sir, I speak delib-
erately when I say, in my humble judgment, it will
be the duty of his Excellency the Governor in the
event of a renewal of the attempt to arrest on the
soil of this State any of its citizens by what is called
a State warrant, to resist it in such a manner as
becomes the executive of a free people, firmly and
decidedly, but temperately and with a patriotic spirit,
and as befits a State which loves and cherishes the
Union, and is resolved to defend it.

I come now to consider the privilege of the writ of
habeas corpus, which the President has undertaken to



1^

suspend not only in the brief period after the break-
ing out of the rebellion and preceding the meeting of
Congress on tte 4th of July, 18G1, when there were
circumstances of justification for his course, but
ever since and without justification. The benefit
of this writ is an esrfential "and inherent right
of the people— it is that of having the legality
of imprisonment inquired into summarily and
without delay. It is so regarded in the Con-
stitution which authorizes its suspension under
certain circumstances. That provision reads : " The
privilege of the writ of habeas corpus shall not
be suspended unless when in case of rebellion or in-
vasion the public safety may require it." The Con-
stitution no where else refers to this privilege except
in the provision before alluded to, which it adopts
from Magna Charta. It here speaks of it as a right
as much connected with liberty as the air we breathe
is with life, as already existing and unquestioned.
And so it was. It existed in full force in the colonies
from their foundation and in the mother country,
from time immemorial. The Supreme Court of the
United States so regarded it in the case ex parte
Buford, reported in 3 Cranch. But let me cite the
observations of that distinguished writer whom I
have already mentioned, Sir James Mackintosh, in
his Review of the Causes of the Revolution of 1688.



19

"Tho most ancient of our fiindeniental laws had declared the
I)rinciple that no freeman could be imprisoned without legal
authority. The iramemoriail antiquity of writ of habeas corpus
seems to j^rove that this principle was coeval v.ith the law of
Euo-land. In irregular times, however, it had been often violated ;
and the judges imder Charles I pronoimced a judgment, which
if it had not been condemned by the petition of right would
liaA'e vested in the crown a legal power of arbitrary imprison-
ment. By the statute which abolished the Star Chamber, the
Parliament of 1641 made some important jDrovisions to facilitate
deliverance from illegal imprisonment. For eleven years
Lord Shaftfibury struggled to obtain a law which should
complete the securities of personal liberty, and at length that
great though not blameless man obtained the object of his labors
and bestowed on his country the most perfect security against
arbitrary imprisonment which has ever been enjoyed by any
society of men. It has banished that most dangerous of all
modes of oppression from England. It has efiected tliat great
object as quietly as ii-resistibly ; it has never in a single instance
been resisted or evaded, and it must be the model of all nations
who aim at receiving that personal liberty without which no
other liberty can subsist."

So much in regard to England. Now in regard to
our own country. I have abeady referred to the opinion
of the Supreme Court of the United States ; but there
is contemporary evidence of some weight. I refer
to an incident in the history of the President of the
first Continental Congress, Henry Laurens, of South
Carolina, who was afterwards sent to Holland to
negotiate a loan for Congress, but was captured by a
British cruisrer, taken to England and imprisoned
there. I hope I do not give offence or cause sus-
picion of treason by referring as an authority to a



20

citizen of Bouth. Carolina. The name of Henry

Laurens, like that of Washington and some othprs of

the rebellious States is " freedom's now and fame's."

On his liberation from prison the British minister,

Lord Shelburne, said, " "Well, Mr. Laurens, if we must

acknowledge your independence, I shall be grieved

for your own sakes. You ivill lose the henejit of the

habeas corpus dct" The patriot replied, " We have

adopted and we can make laws," He proceeds with

the subject, in an account which he himself has left

us, as follows :


1

Online LibraryHenry Cruse MurphyRemarks of Hon. Henry C. Murphy, of Kings County, upon that portion of the message of His Excellency Governor Seymour, relating to arbitrary arrests, delivered in the Senate, March 5, 1853 → online text (page 1 of 2)