United States. Congress.

Abridgment of the Debates of Congress, from 1789 to 1856 : from Gales and Seaton's Annals of Congress, from their Register of debates, and from the official reported debates by John C. Rives online

. (page 125 of 184)
Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856 : from Gales and Seaton's Annals of Congress, from their Register of debates, and from the official reported debates by John C. Rives → online text (page 125 of 184)
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not a single individual within our limits has
any reason to oomplain of oppression, an insur-
rection is fomenteo, subversive of the Govern-
ment and destructive of the rights of the people.
It appears to me that this insurrection is the
most aggravating of all insurrections which his-
tory gives us an account of. There is not the
least oppression or the least pressure of drcum-
stances to induce any individual to rise up
against the Gh>vemment of this country; and it
consequently betrays the greatest turpitude of
inind in those who either lead or unite in it.
For these reasons, I think it ought to be traced
to its source, and I think it very doubtftd whe-
ther this can be effected without, in the first
instance, suspending the habeas corpus. Will
gentlemen say that any innocent man will have
a finger Md upon him, should this law pass?
No; there is no probability of it; it is sciurcely
possible. But, even if it be possible, if the pub-
no good requires the suspension of the privilege,
every man attached to tne Gk>vernment and to
the liberty he ei^oys, will be surely willing to
submit to this inconvemence for a time, in or-
der to secure the public happiness. The sus-
pension only applies to particular crimes, the
liberties of the people will not therefore be
toiKshed. I do thmk a great responsibility will
rest on this branch of the Legislature, in case
they refuse to pass this act. Suppose the head
of mis conspiracy shall be taken in a district of
ooantry where no evidence exists of the crime
charged to him, and he shall consequently be
set at liberty by the tribunals of justice ; wnere
win the responsibility rest, but upon this branch
of the Legislature? It is too great for me, as
an individual member, to bear. I shall, there-
fore, vote for this bill, under the impression
that it will not have the ii\jurious effects that
some gentlemen seem to apprehend; and that it
will oidy more effectually consign the guilty
into the hands of justice.

Mr. R. NsLsoK. — ^As the motion to r^ect the
Mtt meets my most hearty approbation, and as
I consider it involving a great national question,
I cannot reconcile it to my duty to give a silent
Yote on it I shall, however, in order to avoid
an nnnecessary consumption of the time of the
Honse, offer my remarks in as concise a com-
pass as possible. I shall first consider the nature
of the writ of habeas corpus ; afterwards exam-
ine its effects, not only on the indlridual, but
on the community at large ; taking into view
the mode of proceeding under it, to show, as I



conceive, that no danger can ensue, on the re-
fusal to pass this bill.

What \a a writ of habeas corpus ? It is a
writ directing a certain person in custody to be
brou£^t before a tribunal of justice, to inquire
into the legality of his confinement. If the
judge is of opinion that the confinement is ille-
gal, the person will of course be discharsed ; if,
on the contrary, from the evidence, he SxsJl be
of opinion that there is sufScient grounds to
suspect that he is guilty of offence, he will not
be discharged. Now, to me, it appears that this
is a proper and neoBSwry power to be vested in
our judges, and that a suspension of the writ of
habeas corpus is, in all cases, improper. If a
man is taken up, and ia denied an examination
before a judge or a courts he may, although in*
nocent in this case, continue to suffer confine-
ment This, in my opinion, is dangerous to the
liberty of the citizen. He may be taken up on
vague suspicion, and may not nave his case ex-/
amined for months, or even for years. Would
not this bear hard upon the rights of the
dtiz^?

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

This IB a writ of right, which ought to exist
under all governments on earth. What right ?
The right of being examined by the tribunsls of
his country, to determine whether there is any
ground for ^e deprivation of his liberty. Is
Qiis a right which ought to be suspended merely
to gratify the apprehensions of gentlemen ? I
think not The f^mers of the constitution have
said : ^^the privilege of the writ of habeas cor-
pus shall not be suspended, except when, in
cases of invarion or rebellion, the public safety
shall require it*^ Well, but, says the gentleman
fh>m Massachusetts, can any one deny that tMs
is a rebellion ? It may perhaps be, but I think
it does not deserve the name of a rebellion ; it
is a little, petty, trifiing, contemptible thing, led
on by a desperate man, at the head of a few
desperate followers : a thing which might have
been dan^gerous, if the virtue of the people had
not arrested and destroyed it. But admit that
it is a rebellion ; will every rebellion justify a
suspension of the writ of habeas corpus ? The
constitution says : ^^ the privilege of the writ of
habeas corpus shall not be suspended, except
when, in cases of invadon or rebellion, the pub-
lic safety sbaQ require it** Does, then, the pub-
lic safety require this suspension? Does the



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[Jahuaht, 18Q7.



oonstitation Justify it ? And, under present cir-
cumstances, confining a man in prison without
a cause. There is no danger, the enemy is not
at our door ; there is no invasion ; and yet we
are called upon to suspend the writ of habeas
corpus. This precedent^ let me tell gentlemen,
may be a ruinous, may be a most damnable pre-
cedent — a precedent which, hereafter, may be
most flagrantly abused. The Executive may wish
to make use of more energetic measures than the
established laws of the hind enable him to do ;
he will resort to this as a precedent, and this
iiAportant privilege will 'be suspended at the
smallest appearance of danger. The effect will
be^ that whenever a man is at the head of our
afrairs, who wishes to oppress or wreak his ven-
geance on those who are opposed to him, he
will fly to this as a precedent ; it will truly be
a precedent fhiuffht with the greatest danger ;
a precedent which ought not to be set, except
in a case of the greatest necessity ; indeed, I can
hardly contemplate a case in which, in my opin-
ion, it can be necessary.

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

Mr. Sloan. — ^At the same time that I express
my purpose to vote on the same side with Uie
gentleman fVom Maryland. I shall take the lib-
erty of assigning very different reasons for my
vote from those offered by him. The gentleman
from Virginia has mentioned two pr^eding in-
surrections, which he considers of much greater
magnitude than this. I am of a different opin-
ion. Compared to this, I consider them as only
a drop to the bucket For a moment, let me
ask the attention of gentlemen to those insur-
rections, or as I think they might, with more
correctness, be termed, oppositions to Govern-
ment In consequence of certain citizens think-
ing themselves aggrieved by certain acts, in
which they have been, in some measure, justi-
fied by their subsequent repeal, a han^al of
people raised in opposition to tlieir execution,
what analogy do those oppodtions bear to this
rebellion ? I consider the late or present con-
spiracy to be of greater magnitude than any we
imow of in history. Under what authority has
it been created ? Under that of a man of great
abilities and experience, who states that he ex-
pects encouragement from foreign nations. I
do not pretend to say that this is a fact ; but
what has he done ? Has he not drawn resources



from every part of the Union f I, therelbre, <
aider it of great magnitude, and it is certainly
excited a^inst the best government on eaitii,
under which the people eigoy the greatest hap-
piness. I shall, however, vote against the bOl,
under the belief that we may confidently t^
on the love and afiedion of the people for thar
Government, to which we are already probaUy
indebted for its suppression. Had this measure
been brought forward a month or six weeks ago,
I should luive voted for it

Mr. BiDwxLL said, although he was not aatia-
fied of the necessity of |>asBin^ this bill, he was
not prepared to reject it, in its present stage;
As it had received the sanction of the Senaia,
he was disposed to treat it as a subject worthy
of discussion and deliberation, by referring it in
the usual course, to a Oommittee of the whole
House. Before the pasdng of any bill of tibia
nature, the House ought to have eatisfiictary
proof that a rebellion in feust existed, (for then
was no pretence of an invasion,) and that the
public safety required a suspension of the privi-
lege of habeas corpus. By the terms of tbe
constitution, both of these pre-requtsttes must
concur, to authorize the measure. The first in-
quiry would naturally turn upon the exist^iee
of a rebellion. On that pomt he had no doubt
To constitute a rebellion, in the sense of te
constitution, he did not liiink it necesaary that
a battie should have been fought^ or even a
single gun fired. If troops were enlisted, as-
sembled, organized, and armed, fbr the purpose
of effecting a treasonable object, it amonnted to
actual rebellion. Such was the existing state of
things. The public notoriety of the £act was,
perhaps, sufficient evidence for the Legialatiiie
to act upon, if necessary ; but they had also the
official statement of the President to that eflfoet
He had, therefore, no doubt of the existence of
a rebellion, and tMt, too, of a more wanton and
malignant character than any insurrecti<Mi which
had heretofore been raised against our Govem-
ment ; for it had not been occasioned by any
grievances, real or imaginary, but must have
originated in motives of personal ambition, or
some more unworthy passion.

An existing rebellion, however, even of Hum
aggravated description, was not alone sufficient
to justify a susp€»ision of the writ oi habeas
corpus. To bring it within constitutional justi-
fication, it must be required by the public safety.
That was a matter of opinion, rather than <^
fact He was convinced that the proposed sus-
pension was not requisite for the purpose of
suppressing the conspiracy; for by the vigi-
lance and energy of our Executive Government^
seconded and supported by the exertions of
particular States and Territories, and the army,
this deep laid conspiracy was already in a good
measure suppressea, and he trusted the means
now in operation would complete the suppres-
sion. A suspension of the habeas corpus could
not be necessary, except fbr the detection and
conviction of the conspirators. A thorough in-
vestigation ought undoubtedly to be made. K



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DEBATES OF CONGBESS.



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jASUABTy 1807.]



Sutpengion of tht Habeas Corpus,



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anj persons concerned in the conspiracy were
arrested in situations which precluded an im-
mediate production of such evidence as would
warrant uieir confinement, justice would require
that they should he detained until the proper
evidence could he procured ; hut in the mean
time they might he discharffed hy virtue of a
haheas corpus ; for, though he a^eed with the
gentleman from Maryland, (Mr. Nblsok,) in the
importance and utility of this writ, he could not
suhscrihe to the doctrine which he understood
that gentleman to maintain, that it would en-
title a person to a discharge only for causes of
irregularity in the arrest. Want of legal evi-
dence to show, hy oath or affirmation, prohahle
cause for detention, would he a ground of dis-
charge. In ordinary cases, indeed, the release
and esci^ of a guilty person, for such want of
evidence, was esteemed a smaller evil than a
denial of the conmion privilege. If it were so
in respect to this conspiracy, there was, in his
opinion, no good reason for passing this hill.
That was a point which appeared to mm worthy
of some deliheration.

It had heen mentioned in the dehate, that«n
the whole history of our Government, notwith-
standing two insurrections, the haheas corpus
had) in no iostance, heen suspended. It was
true. But an instance had heen cited from one
of the States. During the insurrection in Mas-
sachusetts there was such a suspension, in pur-
suance of a constitutional provision ; and it was
generally acknowledged to have heen a neces-
sary and salutary measure. He had never un-
derstood that it was ahuaed, or that it was con-
sidered hy the people of that State, a dangerous
example. It was Justified hy the occasion. But
it did ngt, therefore, follow, that a similar sus-
pension would he Justifiable on this occasion.
That must depend on the present state and cir-
oimstances of the nation. Although a rebellion
existed, he was not satisfied that tiie public
safety required so strong and severe a measure.
Bat, as it was an important question, on which
the House had not yet taken time to. deliberate,
he was willing that the bill should go, according
to the usual course of proceeding, to a Oom-
inittee of the Whole ; and therefore, he should
not give his vote for rejecting it in the present
state.

Mr. J. Randouph. — ^I shall give mv vote in a
very different manner from the gentleman who
has just sat down. I was extremely happy to
witness the very prompt and decided opposition
this measure received in the House, and from
the ooarter whence that opposition originated ;
and I subscribe with great measure to the sound
constitutional doctrine, which the gentleman
from Pennsylvania advanced this morning be-
fore our doors were opened. We are now told
that to reject this bill at its first reading, will
he to depc^ from the usual course of proceed-
ing in this House, and an attempt is made to
euist the feelings of memhers so far at least as
to permit the bill to progress one step farther,
that we may avoid violating that decorum which



ought to be observed hetween the two Houses.
I do not, however, consider the subject in this
light. I conceive, on the contrary, it is as com-
petent to us to r^ect the bill on its first as on
any other reading. I well recollect that about
eight years ago an important biU was smnegled
through the House hy this fastidious mode of
proceeding. Gentlemen were allured from their
honest opinions, and finally, hy finesse and man-
agement; the bill was carried through the House.
I understand that this course is pursued by the
other branch of the Legislature on bills carried
from this House ; and I believe it will he found
that with regard to the passage of bills between
the two Houses, the course of procedure on the
part of this House is more liberal than that pur-
sued by the other. For I do not recollect a
single instance in which the vote of a single
member can stop the passage of a bill in this
House received from the oQier branch of the
Legislature. I, therefore, feel no scruples on
this score. I think it just as well to say, that
we will permit this hill to pass to a second or
third reading, as to say that though we are op-
posed to the principle contained in a resolution
which may originate in this House, we never-
thdess permit a committee to bring in a bill to
carry it into effect, because we may destroy the
biU at its last stage. This appears to be a
strange course of reasoning. It is like permit-
ting yourselves to be hound in chains that you
may be loosed again, or going into prison that
you may afterwards come out. Gentlemen talk
of the propriety of discussing thiE> subject, hut
when a suhiect is so clear that every man has
made up his mind upon it, where is the need
of discussion ? If it is not so dear, will a%
gentleman say that the discussion now had, in
which every member has a right to speak twice,
which is once more in my opiuion than is neces-
sary, will not be sufficient to develope all the
merits and demerits of the hiU? Will gentle-
men undertake to say, if every memher shall
give the mature, or as it may be, crude sugges-
tions of his mind, that the subject will not he
sufficiently discussed, and lead to the formation
of a correct judgment ? I believe it will. And
therefore^ on this ground, a bill may as well he
dedded in its present stage as before a Com-
mittee of the Whole.

Some gentlemen, to whom I Have listened
with considerable gratification, tell us that, out
of respect to the other branch, we ought not at
ttus time to reject the bill. I, however, feel no
sudi re&pect on this occasion, and shall express
none. On the contrary, I am free to declare,
that when a measure, tending to impose a bur-
den on the people, or to detract from the privi-
leges of the citizen, comes from that quarter, I
shidl always view it with jealousy. The ine-
quality of tiie representation in that hranch, the
long tenure of office, and the custom with
which they are so faxniliar of conducting their
proceedings in conclave, (the House will recol-
lect how long it was after the adoption of the
constitution before the public could get admia-



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sion into their twopenny gallery,) render all their
prooeedings tonchinff iJie pnbHc burdens, or the
liberties of the people, highly suspicions. And
to say the tmth, I am not at all surprised that
they did close their doors on this ocoasion, that
they might not be under the inspection of the
public eye, while they were passmg the bill on
the table. I say so, because I am willing to
abide by the good old principle of Judging all
men by myself ; and if I had introduced such a
bill, I should have been glad my name did not
appear on the Journals, that the public might
not know to whom they were indebted for such
a precedent

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

I beg pardon for detaining the House so long.
I will, however, endeavor to express the re-



maininff ideas I have to offfer in a few words.
There is another consideration which renders
this biU highly objectionable. I consider the
case as now at issue, whether the United States
is under a military or civil government, or, in
other words, whether the nulitary govemmeiit
is subject to the dvil power, or the civil author-
ity to the militaiy'. t conceive that a case has
occurred, in which the military has not cmly
usurped the civil authority, but in which it hia
usurped nothinc short of omnipotent power;
and I consider ubis biU as calculated to ^ve a
softening and smoothing over to this usurpatkm ;
and on wis ground I cannot assent to it. Sup-
pose this bill either to pass or not to pass« what
has been the practice under the constitutionf
By the expression, under the constitution, I do
not mean confi>nnably to it Men have been
taken up by a military tribunal, and have heea
tranenported contrary to law. I say tran^KHted,
for ii a man can be transported from the dis-
trict where the offence with which he is
charged was committed, he may also he depoit-
ed to Oayenne, or transported to Botany Bay.
Afid even yon yourself^ (addressing the Speaker J
if such acts be sanctioned by this bill, in your
passage from this House to your lodgings, may
be arrested, put on board a vessel and carried
whithersoever the military authority may chooa&
To this I will never give my consent. It has
been very well remarked by my colleague, thai
this is not the first case in which an insurreo-
tion has occurred in the United States, but that
it is the first case in which an attempt has been
made to suspend the precious privilege of tiie
writ of habeas corpus.

I put it to any man, whether, now Hiai we
have received information of the ext«at of tids
conspiracy, and when we find tha(f Catiline,
Gethegus, and Lentulus, have not as many
brother conspirators as themselves, this conspi-
racy is equal to that in Pennsylvania in 1794 or
1796 f in physical force it is not comparable
to it, however in intellectual talent it may be.
I conceive then that according to the Constitu-
tion of the United States, there is but one case
in which the writ of habeas corpus can be kib-
pended, and I should not go into this view of
the subject, if it had not been misstated by all
those who have preceded me in the debate. My
view of the subject is this— that this privil^e
can only be suspended in cases in which not
merely the public safety requires it^ but that the
case of the public safety requiring it, must be
united with actual invasion or actual rebellion.
Now, with whatever epithets gentiemen may
dignify this conspiracy, I am not even of the
opinion of the gentieman fi*om Maryland (Mr.
R. Nelson)— I think it nothing more nor less
than an intrigue — and I am happy that I can
declare on tiie honor, not of a sol<£er, but <^ a
citizen, that I believe it to be a foreign intrigue,
availing itself of domestic materials for answer^
ing its purposes, and poor indeed must be the
soil of this, or of any other state of socie^,
which would not furnish such materials.



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Online LibraryUnited States. CongressAbridgment of the Debates of Congress, from 1789 to 1856 : from Gales and Seaton's Annals of Congress, from their Register of debates, and from the official reported debates by John C. Rives → online text (page 125 of 184)