James Harlan.

The Constitution upheld and maintained online

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Ju thjB oenuU'j «very patriot i-everenoee tht (JoMtitutioii anu tiKi ih,<:vA itNeij
wanton violation of either stirs his indignatioi.. Ae in Rome the vo;-.- of th«
p«©ple was said to be the voice of QoA, so in tbie eonntry the law ia our only aov-
e»«ign which all, from the President to th<; humblest among the toilius; ;./i]ii)D<5, maet
iapE«itly obey. Whoever wantonly tramples the Oonetitution asid'li.^ !« ws under
kie feet, is properly held \a be an enemy of the people, and at wai wiiH their dear-
«6t interest

Relying on this reverence for the law of the land, the rebels ot ih" South and
iheir allies in the North, have sought to justify their treason, and seeare (j diversion
>B favor of their wicked purposes, by denouncing the President as a esarper and
tyrant, and his administration as unconstitutional So persistently hs v^ they por-
sned this course, as to convince many honest and patriotic citizens of it^ truth. So
ihat many of the President's warmest admirers, and consistent end ard'^.l friende of
4be Union, justify these supposed violations of the Constitution on th- ground of
"military neoeseity," and the duty of the President to preserve the '^^ivemment.
Kor will I dispute the potency of this defense of what would otherwi-? be the nn-
lawful act of a nation or an individual For tke right to self-pres^-^r^atjon ig the
first law of nations as well as of nature. This principle underlies every national
«»de, and every system of l^a) casuistry. None are so foolish as to Sr.siat that a
•ation may not disregard its own laws to avoid destruction: and noo^. s- jept rebek
«t©ep«d in crime could desire our Government to tamely submit to auu; dilation.

But having carfully observed the administration of public affair? by Preaidfiot
iJMoln, and as earfully examined the charges of vanooiwtitvitionhUty' preferred
agaiut it, I fearksaly pronounce them groundless,

\a% w txamiae for % few minmtee Bom« of th* grav«9t ef thcs* chari^es.


"*' ' 3AJ^,FpK AULITIA

1 Tlie rebeli South .ind Nortl/'denounced th. lir.l belligereat act of Pre»ideat
LiicoSliloairfor Bou^e seventy-five thousand mil.t.a. ob untronst.tut.ooal and

'^TntvettbeCoustitution provide, in ao many words that Congreee shall have
^"^'to provide for calling forth the militia to execute the laws of the Union, Bup .
^^"S^^ 3:l-^tST-isi^^of ' tK^Coititut.on, many vears before
pr^deS^ it; fb.. Ue use of th^ militia )^^^^-^^:^, "^^X
come necessary for the purposes "*^^^^„ ,^"f ^^^7;^,' .flar on fch. Gove^Lent
"^^Z^^i:^ t^^^:^^:^:^^ hie oath . execute the
law.^ made I he call for troops to assist him.

» ^Thc copperhead* denounce the President for the " conscription " or -draft " of

soldier, to Jill up '^'i'P^'^r^'t'J.Zt Table bodied male citi.^98 owe tlieit \

And yet none will senouBlj deny ^^^^^^^^^^^^^^^^^ aid in the enforcement of
services to tlie republic when needed for its ^f ;*°'^;,^' ^/^^^g ^hgn the necessity
itfilaws: and that if they do not voluntarily 'R "^ ^^^^/rTehTtLoerce the ser

ari.e.. they may be - ^?f'^^^-'''''i;''f't^J^^^^^ laws, all civil

vices of iU citizen.^ to aid in the common defense and to. en ^^^

government would prove a tota failure. "«f.« ,'''^'7^. ^''^^ution of proce^, are

^halls, in every State in the Unuon -^en resisted m^^^^^^^^ ^^^ . ..^ .^

authorized by law to call "bv-stanJai-., al ''^ ^he^ leacli ur • ^^

declared to be a crime to ^f -• ^he -ams.U aid. bo^^^^^^^^ j^^^^^^.

and must ever continue to be when ^.^^,^J^\*^;^^\"h'r['ht to require the aid of all
or external foes. The proper oft.cers n^^^t liave the iigni . q ^^^^^^

scnption." president di<i »ot comiaence /aising troops in this mode

And all knew that tlie 1 lesiaenu uki «« Coucress had the power

shall have power » i , a <- \ •

•' To rfti«e and support armies." (Const Art. 1. i^ec. o.^ ^ ,. • •

T^ :::.:ther^., . ^^ena.^-it^. wi^^t ^.t^^H^^^^^
them, the material, pa., 'f ^f""^?*' if^^ ' ^fsf' A^^^^

nationality are .11 left^to tli^ diserelum f .<?°. f '^J;^^f "f J ^ si era! Stated wereno't'
Pre.idcnt-8houl.l call fv>- ^■^]"" ,Sfv^'^'>i.t.„^\\f '^^^^^^^^^ deliuuuent State, b^:

thus filled, he .houl^ ^.^ ^'fet^^ S^°"^om i^ K tl e Co^sAutiou, la cai^

;;^x^J;::^t:; i^:il,i4,>v^-o- of the const.tut.on, ,

3 my denounce th.F.^derUforviolaHnpf.G^sUt^^
lad yetall kno.v that he^did nut ^y?,^^;''^Z%2 st.fh a >t will hardij be
ing this to be done. Ana the power ^^ ^^^"^ J • ^,f„7Xve «ifed whioh decUu-es'
quesuoned ufver reading the clause of ^''^^^^'^fj "''^t^'J^'^I^ Uere is no l^-nila. -
?hat " Congn..s .hall have power f° ^;!';l^'^i,7i;";°d 'r >Xw, a..d of any .-•atioaW
Uon. The t. .ops raised may be black "^^''^''^'T.^J^^'w.^^^^es.or owneiB, o,>pren.
^ity; they .J he J^^-s or i^e.gners rmnoi.^^^^ ^^^^ ,^ J . , ,

tiees w m8-3t.r<= ; and so ui a;* ^^^^^^^.'u ' o ^U policy. O-lored tioo-.s tin-

the volunae. . ,, . o^„,,f,r lohnaon once AttorneyvGeiicral

Bu^.Vmll only mention m T* "';S ^"^^^ ^^^^^^ ^ot aMend •

of thft<JjDJt«A State*, a genfieman ot f 'Jf J',';^^"' '^^'^^^J^Vty to r.pnumnd it fo, ^:Cty>..
of th.3 AdminiBlration-wno has ''^^^f *;;^"/i^ ^^'^p^;^^ on rtil ttoor .rf;tto>J6«.*t«..
supposed weakness, erifor,x» oy»r»i«H »»^d »n a speeon o

at it its last session,




'•**Mr. PveeiJeni, a word onwoniordonthiseubjeci btfore I leave it, 1 have had oocaeioa more
than onee during tlie i-ession to say (ami that opinion 1 confidently entertain) that althoug-h by the
Inwe of the Stales Africans are made property, they are also under the (Jonslitullon of the Un!l«<l
States, with reference V) the war power of the G"vcrnmi:nt, to be considered ag persons, and may
be used ns persons and brouahl into the field to maintain the authority of the Government to which
as persons they owe allegiance. If this opinion be Bouud, if they are persons subject to our mili-
tary control, if they are persons Increasing our military power, they are for the same reasons
persons under the military control ,of the rebels, and may increase their military power, acd a«
Bochit is aa much the right of the' United State* to take them from the rebels or to use them against
the rebels, as it in to take from and uje against the rebids anything else that may be used by
Uierebfle against the United States.— (Cwifir. Globe.

4tb. T/ie Pr<^sid(7it i^ accused of havinr; mterfered with the freidom of speech aiid
of the prefis.

There i? a differeroe hetw (ten freedom and licentiou3!ie8. The liberty of all to ae-
quire property does not include the right to steal and rob. Freedom of locomotion
<loea not inclnde the right to trespass on another's preraieee. Freedom to love, and
to he loved, does not include the right to distmt) your neighbors domestic bappinesa.
8o " freedom of the press " does not include the right to print and circulate coun-
terfeit bank notes ; nor freedom of speech, the right to slander yowr uoighboj-, or
*' to give aid and comfort" to the public enemy in time of war. And if any one,
nnder the pretense of aright to freedom of speech or of the press, commits treason,
he muy and ought to be restrained and punished. To pretend the contrarv, ■would
indicate extreme mental obtuseness or unpardonable and criminal wicksduess.

li the President has in any case suppressed a newspaper, Or arrested any one for
words spoken, in which the parties were not mteutionally and ostentatiously en-
coursgiug the tebels to continue the war, and stimuluting their doj thorn sympa-
thizers to obstruct and embarras- the Government in its efforts to suppr^^ss the re-
bellion, it has never come to my knowledge. But whether he has or has not erred
in an}'. given ease, in relation to the guilt or iuDoceose of the party, is not the r«aJ
qnestion. All admit that his i... ritions are pure. Tlie real question h one of con-
Btitutional right to prevent publiaksrs of n-ewspapers and stump speakers fromcoai-
milling treason — from giving aid and comfort to the pftblic enemy.

And the right. to suppress a newspaper used in the interest of treason is as' clear
and indJsputuble as the right' to take a dagger from the hand of Uie assassin, toolp
iroiii the ooimterfeiter, or muskets from the hands of tlie rebels. The freedort of
speech and of thepre.^s is not more espliciily guarantied by the Con.^tj[fcution than
"the rigltt to bear arms."

But before leaving the subject, I propose to prove, from the ofKelai record, 'hat
the copperheads themselves do not believe their own statementa on ihii subject.

Immediately preceding the last presidential election, Jefferson Davis oifered for
the consideration of the Irfenate, a series of resolutions declaratory of tiie principles
which f^hould control in the administration of the affairs of the Natioi^al Govern-
ment. When the second resolution of the series, which made a covert attack on the
freedom of discussion, was under consideratioo, I oflered the foliowiiig aa an amend-

"But thd tree discussion of the morality and expediency of slavei'y .should never bo interfered
with by tho laws of any Slate or of the United States; and the freedom of speech and of the press,
on tills anil every other sulijocl of domestic and national policy, Should be maintained inviolate

in all Iho States."

The question being t^enon this amendment, by yeas and naye, resnlted yeas 20,
nays.iJG — every Democratic Senator voting in the negative, including Bright, of In-
diana, Owinn and Latham, of Galiforni;*, Lane, of Ol-egon, Pugb, of "Ohio, and
Thompson, of New Jersey, all iepreseutiog northern States, a.nd all. from border
slave States, as well as those from the extreme 3outh.-~(Gong. Globe, ,l! - t8essioD,

36; h Congrtss, pages 1937-2321.) • "'•.,:

On the 8'.h of April last, when Senator P»wi-Ii, of Kentucky, was deuounoing the
President for interSering with what he styled " ireedom of speech," I called his at-
tention to the foregoing, reminding him that he and all his Deroueratje associates
in the Senate voted against free speech. He replied that the scope of the amead-
meiit Would have been to send persons down youth to preach in^urrirctlon to their
slave?. "I would vote nay agtiin on that vesoiutioa, I voted .vight." — (Gong.
Globe, 1st Eesoion, 38tn Congr^a-j, page 1487.) Tiiat is, accorditig to Lis af^miesio.o,

'|,h« freedom of speech and of the press " may be euppreased to prevent the insur-
rection Sf negroes a7id to preasrve slavery ! ■ Thea r<ay ret its lice7iiio!isness be re-
alraiued to suppress the rebellion of wbit« men, and to preserve the 4bfovtrnmcnt.

5tk. The copperhead* (ienouii<^? ih< adminitimiion. for'thc r»«i?««<»^w»H of t-hc pr»m-
erty of rebela and the liberation 9 f tkcir'siants.

And jCt the Constitution 8a;y3

"The Congsess ahall hare power to declare the pantshmdnt of trea«o«."— (A.rt J sec i.)

And O'iugi -5s, in pursuance of this provision provided by law, that unlesa these
traitors sLoaid lay down their arms and return to their allegiance within a time to
be fixed bj the President, they should be punished by the confiscation of all th«r
property, including slaves^.

And why should they not be thus punished ? Heretofore the punishment of trea-
son was deiith. This is the usual penalty for this oflFence in every civilized coan(,ry
on earth, if you may haug for treason why may you not inflict a leas punishmoat
—the losc oi property ? And if you may proscribe the loss of property as the p«n-
iehment of treason, why may you not include slave propertj"- ? Is property in slave*
any mor-' sacred than property in cattle and lands? The power conferred by the
Constitutiou is plenary. Theyinaj^ declare it to be the loss of lands, ijattle, mulee,
horses, negroes, or franchises, such as the right to vote, hold office, or bear arm*.
There is no limitation whatever except that the punisiaraent declared shall not be
inflicted on the ohrildren of the traitor. Yob shall not deprive the child of the
right to ^ otr^ hold office, bear arn"<s>, or to acquire property on riccount of the pa-
rents treason.

6th. The Fresideut ie denounced for issuing a proclamation liberaticg the ularos
of rebels within the rebellious districts.

And pray why not? We have just seen that " Congress may declare the punish-
ment of treason :" that in pursuance of this provision of the Constitution, Congress
did declare that all traitors who should not lay'down their arnns by a time to be
fised by the President) should forfeit all their property of " every kind," including
sla7e propLitj-. The President had taken a solemn oath to take care that "this and
and all other "laws should be faithfully executed." Within the rebellious districts
this confiscation act could not be enfortied by the courts. But it was believed that
if not impeded by the army and navy, it would to some extent execute itself, that
many thou8an(^ti of the slaves if protected would abandon their rebel masters. And
to secure this result the President issued his proclamation, declaring that within the
rebel districts, all persons, iq^'espective of their former status, should be considered
and treated by the United States Government as freemen; and requiring the ofli-
cers of the army and navy to recognize their right to maintain their liberty- An^
if it is admitted to be right to punish rebels within our lines by the confiscation of
their property, including slaves, pray can it be wrong to do the same thing beyond
our lines so far as the effort cni\ be made effective ?

It is objected, however, that the- proclamation if enforced would liberate the
slaves of Union citizens as well as of rebels. And it is clear that the emaHcipatioa
of slaves of Union citizens who had not aided the rebellion could not be justified,
under the clause of the Constitution authoiizing Congress to declare the punishment
of treaaob ; and to that extent the proclamation would be void, unless justified by
the public .-iHceesities ; and in that case the parties thus losing slaves would have
the samt right to just compensation as if other proper had been taken for a similar
purpose. And this would be a question for the courts to adjudicate when the sir
premacy oi the Constitution a,^/^ laws shall have been restored.

7. It is avered that the President violated the Constitution by snspc tiding th<' virii

of habeas corpus.

And yet the Constitution says :

' ' The priviledge of the writ of habeas corpus shill not be suapended, unless when in oaaes of
rebellion or invasion the public safety may require it." (Oonstitntion Art. lat., eec. 9.)

This is what 56 styled by lawyers a negative pregnant; and is equivalent to-
saying that "The priviledge of the wrtt oi habeas corpus may be suspended when
in cases of rebellion or invasion the public safety may require it." Aqd as a re-
bellion does exist, the priviledge of the writ may be properly suspended if the pub-
lic safety requires it. There can be no question of the right to suspend it : the only
question that can arise, is, "who can judge of the necessity?" On this question ft
large majority of tiie best legal mi«ds of the country who have expressed an opin-
ion on thir point, conclude that the President is the proper party to exercise this
judgment, as he is the Commander in-Chief of the Armies and Navies of thjs Repub-
lic, and is at the same time the chief executive officer entrusted with the enforce-

mtai of t^ie Uws. Others, iiowe-7ar, eoaclude t nai Congress should decide vrhcQ the
pablic safuty re^airea its suspension. Hence, to silence cavil, Oongrees onact«d a
law, formally directing its suspensioa, daring the continuance of the rebellion,
ynenever, and wherever the President might find it necessary to secure the (?ii
fflr^ement of the law*. And thif? oun;ht to be an end of the controversy.

8. The President is d«uounccd for violating the Constitution by the "arbitrary
arrests" of suspected parties and offenders in cases not founded on "information"
or ''indictment," — and for authorizing their imprisonment without a trial and con-
vietion by a jury.

These charges are usually viudictivc and malicious, and are m the first lustaace
-altered for partizan effect, — and are doubtless repeated bj tlie shallow minded and
anreflectiagOunder a belief that uo arbitrary- arrest is legal and constitutional
Noting coulcNie farther from the truth. Any citizen has a perfect inherent right
to an-est a criminal without process aiid to restrain him until ptocess can be secur-
ed. And a'Jy citizen has a right without process to arrest a party to prevent the
commission of crime, aud to restrain him until the danger has passed. This is done
every day and evtry nighfin the great cities. Men are discovered apparently on
the point of committing critne, as an assault and battery, a burglary, a robbery, or
a murder, aud are seized and iucarcerated or otherwise restrained "of their liberty,
to prevent the commission of the offence. In all such cases, even in times of pro-
found peace, it is idle to insist that the arrest must be preceded by a formal "infor-
formation" or "indictment," or that a "jury trial" must precede an irnpriaouraent.
There would be no time for this — the delay' would be fatal: instant action is ne-
eessary to prevent the crime. Such arrest? are therefore not only right— but ft re-
fusal to make them would be a critne against societr.

The President, when convinced that persons were about to commit treason — the
gravest crime known to the laws, has caused their arrest and restraint' as in the
case of Vallandighara, of Ohio; and Jones, of Iowa, until the danger had passed,
when they have been set at libert}-.

I am not iiere ULdertaking to justify any specific case of arrest made without
process. Some of them may have been unnecessarr, and may have worked great
personal hardship. The President may not have been correctly informed, and may
have erred iii any given case. He could not be everywhere in person and must,
necessarily rely on others for information. All I claim here h that he intended t»
do right, and that in principle he had a perfect right to make iirreste without pro-
cess to prevent the commission of crime. If not, why not? We have seen that a
private citizen may do this— yea, more that it is his duty to do so— and a wrong
akm to s. crime to refuse when he has the power May aot the President do what
a private citizen may do to prevent the commission of offences!

In^he case of an arbitrary arrest by a private citizen without' process, if the res-
traint were to be protracted, the party could serve out a writ of habeas corpus, and
secure his discharge by the judge of any court of competent jurisdiction. But if
made by the President in times of 'invasion or insurrection" he could, if he deem-
ed that the public safety required it, as we-have seen suspend the priveledge of thijj
writ and retain the party in custody.

If any doubt might otherwise exist on this point, it ought to be eettled in the
minds o{ those who reverence the courts, by their decisions'in the case of the arrest
and restraint of Vallandighara by Geueneral Burnsidee. While still in ciistody. ap-
plication was'^made to .Judge Leavitt, of the United States Court for the Southern
District of Ohio, for a writ x)f /inbta.s corpus. Vallandighara was fully heard in aa
able and^exhaustive argument, delivered by his personal and political friend, ex-At-
torney General of Ohio, George E. Pugh, who for six years was a representative of
the Ohio Democracy in the United States Senate, and Judge Leavitt refused to issue
the writ, This -was, in effect, deciding that the arrest was capstitutional; for no
ot-her question could legitimately arise than the power of the President to make the
arrest without process, and the constitutionality of the restraint. In applying for
this writ the party must allege that he has been illegally arrested and restrained
of his liberty, setting foith the pretended grounds of restraint, if known. When
brought before the court or judge, according to the principles of the common law,
the question of guilt or innocence is never tried. The legality of the restraint is
the only question that can be put in issue. But the judge or court would not, of
course, issue the writ and bring the party before the court for a hearing unless, ac-
cording to his own showing, hi? arrest vvae illegal. As Judge* leavitt refu.sed the


writ, i- it, m effect, an affirmation of the legality of the restraint No/ oan this
decision be juetly attributed to political bias. For this judge wrb appointed by
President Jackeon, many years before the existence of the Republican party; and
he has never been accused or euepected during hie long official career of the slight-
est divergence from the line of judicial rectitude.

An appeal was however taken in the Vallandighana ease to the Supreme Court of
the Uniied States, in an application for a writ of certiorari, or an order on the Judge
Advocate General to send the case to the Supreme Court for re hearing. This appli-
cation WBB refused after a full hearing in open court In other worda, the decision
of Judge Leavitt was sustained by the Supreme Court ; and the question practically
settled by the court of the last resort, that during a rebellion or invasion the Presi-
dent may legally arrest suspected persons without process, and when in his opinion
the public safety requires it, may suspend the right to the use of the writ of hnl>eat
corpus, and retain them in custody until the danger has passed. This right is there-
fore affirmed by4ivery department of the Government, by Congress, by the Presi-
dent, and by the Courts. And finally the Copperhfad National Convention at Chi-
cago has stultified all that Copperhead senators, and members, and newspapers, and
stump speakers, have said in denunciation of "arbitrary arrests," by thf; nomination
of Major General ilcClellan for the Presidency, after his " arbitrary arrest" of the
members of the Maryland legislature.

9th. But, it is demanded, " why ar»i not the.-e parties put on trial il" "Admitting
the necessity and legality of the arrests and restraint, surely they have a right to
trial by a jury of their countrymen, and to be confronted with the witnesses who
tesliy against Ihem."

This is more specious than isound. In the c^ma of ai«rests made to prevent the
commission of crime, how would it be possible to put the par:ios on trial? How
could you try a party for an offense not committed? The utmost that could be
demanded would be the release of the suspected parties, on giving bond and satis-
factory security to keep the peace. And this has been done in every case where,
in the opinion of the President, it was compatible with the public safety. But put-
ting a party under bonds is but another mode of restraint substituted for impviaon-
ment. It is the same in principle. The rigLt to do the former involves the right to
do the latter.

lu cases of arrest, alter the commir^sion of the crime, what authority has the Pres-
ident to try, condemn and punish, the offenders? The ConstitutitJip says:

"No person shall be held to answer for a CHpital or otherwise infamous crime, unless on a pre-
sentment or indictment of a grand jury, except in cases arising in the land or naval forces, or In
the militia, whtu in actual service in time of war or public danger." — (Article 5, Amendments to
the Uonstitutlon )

Hence, the President and all his Cabinet, the Congress, and all the Courta com-
bined, have not the constitutional power to put a man on trial for an allegeacrime,
except in the nature of a preliminary examination Tor the purpose of eliciting facta
to justify restraint of the suspected party. This can be done only by a grand jury.
The President has the constitutional right to arrest and restrain during the continu-
ance of the rebellion any offender, or person about to commit a crime, so long as the
public safety may require it. To deny this right is to deny the validity of the Con-
stitution. But he has no rjght to try in the judicial sense, or to convict, condemn,
or punish, any one; this is the province of the jury, the 'court, and the sheriff.
Nor-has the President put on trial, in thp judicial sense, or punished any one not m


Online LibraryJames HarlanThe Constitution upheld and maintained → online text (page 1 of 2)