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 132 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 132 of 184)
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act, in pursuance of orders frwa the late Presi-
dent of the United States, and Congress have
passed a law to indemni^ for those damages
The Executive orders, under which he daimed,
taken in connection with the law, which was re-
ferred to in the orden^ did not iqipear to me to
warrant the transaction, which has been ad-
Judged to be illegal, and for which the damages
were recovered. * I did not, therefore, rote with
the mc^ority in favor of his daim. 6ut gentle-
men who supported it on the ground I have
mentioned, wiO, if they are consistent, be so fitf
from inferring a necessity for fturther penalties,
from the case of Captain Ealtiesas at Oharies-
ton, that they will be ready to grant him an in-
demnification, if he shall be found to have acted
honestly, according to his understanding of hia

Digitized by





The Writ of ffabeat Corpue.

[H. OP R.

ordera. By indemnifioation^ I do not mean an
act of indemnity, in the Britiah sense of the term,
I^eadable in bar both to an action for damages
and to a proseontion for an offence. Bach an
act might here be considered unconstitutional
and void. A remnneration for damages incurred
has been the mode of indenmifioation adopted
by our Gtovefnment.

On this subject an example has been quoted
lor our instruction, firom Euf^lish history. It
was a proclamation, issued in derogation of law.
by the King, with the advice of we oelebratea
Lords Ohatham and Oamden, on a great national
exiffenoy. The measure was generally approved
and applauded throughout the nation, v The
Parliament were ready to sanction it But, in-
stead of accepting an act of indemnity, those
Ifinisters undertook to justify it. as legal, upon
the principle of necessity, la tnat they erred.
When the question came before the court for
judicial consideration. Lord Mansfield decided
against the doctrine or his great political riyals,
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 proclama-
tion, as legalized by Stote necessity, the Minis-
ters 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 author!^, when the law did
not authorize it. Whether Qeneral Wilkinson's
oonduct has been correct or erroneous in otiier
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 Govern-
ment, he was justified by orders or by law. He
has not cast the responsibility upon any other
oflker or department of Government. He has
explicitly assumed it all to himself, and put him-
self on the candor of his country for indemnifi-
cation. 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
duJl turn out, upon fdture investigation, that
he has acted unnecessarily and wantonly, fi-om
motives of malice or resentment^ he will un-
doubtedly be 1^ to suffer the consequences. I
sfve 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 prema-
ture. We have not sufficient information. We
have not a statement of all the facts, nor the
evidence in support of the facts, which are stat-
ed. In due time an inquiry will be proper, and
doubtless will be instituted. Gtonerat Wilkinson
win probably demand it himself. But it would
be unfair and uigust, as well as impolitic, to an-
ticipate it.

Mr. QunroT.— So long as an intention appear-

ed to make this a party question, I had no incli-
nation 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 lib-
erties of us all, to be examined under those nar-
row and temporary views which party spirit
necessarily introduces. Since the discuseion
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 t^en of
it, .as yet^ on this fioor.

I cannot agree with those gentlemen who
maintain that in the arrest and transportation
of BoUman and Swartwout, they can see no vio-
lation of the rights of individuals. The privi-
leges of the constitution are as much the inher-
itance of the humblest and the most depraved,
as of the most elevated or virtuous citizen.
To be seized by a military force, to be conceal-
ed 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 viola-
tions of individual rights, and of the constitu-
tion. I am not, however, prepared to say, that
in no possible case they can be pardoned; nor,
with the gentleman from Virginia, (Mr. Rak-
DOLPH,^ that in no case, I would consent to in*
demnii^ 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 t^e party to be indemnified must
evince that he had hiinsedf no voluntary agency
m producing the state of things which made
such an unconstitutional exercise of power ne-
cessary to the safety of the State. I give no
opinion concerning the conduct of Creneral
Wilkinson. The events which happened at
New Orleans have no other relation to the sub-
ject before the House than this: tiiey have
turned the attention of refiecting men in this
nation to the nature of the security they possess
agunst similar violence; and, in common with
other reflecting men, it has become our duty
not only to imderstand the nature of that secu-
rity, but also to supply, as soon as possible, any
deficiencies we may discover in it.

The only question is. Have this people the priv-
ilege of the writ of habeas corpus secured to
them as fully and effectually as tne constitution
mtended, and as vrise 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 vh*-
tually no writ of habeas corpus. And for this
plmn 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 pasraons, or of any predomi-
nant power, leads to the oppression of an indi-

The writ of habeas corpus and the penaltiee
by which it is enforced, and in which the great

Digitized by




H. or R.]

The Wrk of Babetu Corpu.

FkBBnAXT, 1807.

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 nower,
until after the statute of Gharles II. called by
Englishmen their second Magna Charta. This
statute gave penalties unknown to the common
law. If a judge refhses to grant, or an ofBoer
refoaee to execute the writ, he is liable to a
penalty of five hundred pounds sterHng, and
similar sanctions annexed to other neglects of
the precept. The House wiU observe, that all
these penalties are securities given to personal
liberty, additional to those which exist at com-
mon law, and are not substituted for them.
These penalties j&re annexed for disobedience
to the writ, not as indemnification for the
Injury. All the other remedies against the
judge, or the party imprisoning, remain unim-

The question recurs, does the Federal Oonsti-
tution, by securing to us " the privilege of the
writ of habeas corpus," secure to us those sanc-
tions of tlie writ which constitute in England
its characteristic security f If the constitution
had re-enacted the statute of Charles, there
could be no doubt. But will gentlemen seri-
ously assert, that a penal statute of another
country can, by construction, be declared the
law of this, so as to make our citizens obnox-
ious to its penalties ? If that statute be our na«
tional 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 na-
tion. I refer to the opinion of Judge Chase, in
the case of the United States against Worrall.
2 Dallas, 894.

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 enoagh, for this Legislature to com-
mence an inquiry into the nature of that securi-
^, and the additional provisions it requires?
This at present is the only question.

But the gentlemen ask ^* What need of ftir-
ther penalties? K the judge refbses the writ,
is there not impeachment ? Against the person
illegally imprisoning another, is not an action
for damages?" I answer: Both these securi-
ties for the personal liberty of the citizen exist-
ed, and do still exist in England, as ftilly as
they do here, yet was it ever before heard that
these were reasons against enacting that cele-
brated statute of Charles, or were ever urged
as evidence that its provisions were needless, or
useless 9 The penalties of that statute are guar-
antees 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 actu-
al liberation of the person from illegal imprison-

ment, in the shortest time posaible. To Una
end aU its provisions tend. It will not leare a
citizen to languish in prison, in expectation of
the result of tiie slow progress of legislative in-
quisition, or for the purpose of ultimately quafi-
^ing him to receive a heavy compensation in
damages. Impeachment is always a dabkmS|
and an action for false imprisonment often an
inadequate security for the obeervanoe of ti»
writ of babeaa corpus. Great violations of the
privilege of this writ can never happen, mAem
in times of great violence. In such times, what
hope of an impeachment against a Judge who
abuses hia authority in coincidenoe witii tiie
views of a prevailing party? And as to dun-
ages, is personal liberty to be estimated by
money ? And if it yrere, what certainty that the
person guilty of the illegal arrest will be com-
petent to pay the damages recovered? In the
case of seizure by a military poww, can it ever
be eiqpected, from the universal pecuniary defi-
ciencies of the soldiers, that damages will be
realized, even should the civil arm be compe-
tent to enforce an execution ?

The penalties afiSxed by the statute of Charies,
on the contrary, assure the obedience of tiie
courts and officers of iustice, independent of aH
party influences whiok may hiq>pen to prevaO
in the nation, and secure personal liberty by
pecuniary perils, suspended over the heads of
men, whose situation in society is sach as, in
general, makes the attainment of the penalty
certain, should it be incurred. Upon the wboie^
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 pos-
sess less security for their liberties than the sub-
jects of the law of Endand enjoy for theirs, or
they are reduced to the necessity of ad(^ting
the doctrine that the statute penalties of an-
other country may by construction beoome the
laws of this nation ; than whi<^ 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 inreo-
tives which have been uttered. The question
is too important to be mingled with feelings and
passions of these descriptions. And the cir-
cumstances of the times and of the nation, seem
to me to claim from us a contempt for these
local and ephemeral distinctions.

Mr. NKWTOiir. — ^I presume I may be permitted,
notwithstanding the motion has been tried, to
go fullv mto the subject before the House. I
hope this House will not indefinitely postpone
it K ever there was a subject within the at*
tention of an enlightened Legislature, it is tiie
subject before us. Every su^ect 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 op-
pression, it is our duty to do it, and to pay at-
tention to whaterer is hk^ to eventuate in

Digitized by




FSBBUABT, 1807.]

Th9 Writ of Habeiu Corpus.

[H. or R.

0aoh an issue. I shall not consider this case as
the basis of an impeachment. The only trae
inqnirj at present is, whether the writ of habeas
corpos is sufficiently fortified by legislative nro-
visions? I will not commit my understanaing
so far as to decide on the conduct of the Com-
numder-in-chief. li 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
oase 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 Vir^nia, 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 ar-
j^oment from the bar, are again afloat on the
ocean of uncertainty, have started some new
doubts, and have asked the gentiemen of the
bar to come forward with a new an^unent If
this is the fiiot, 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 whetiier they have appellate
Jnrisdiction in criminal cases; before whom
criminals are to be brought ; who are to grant
writs of habeas corpus, and admit to bul?

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 gentiemen, we cannot
mature this sul^ect tMs session. Perhaps so;
but is this a sumcient reason for not oommenc-
ing 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 &vor of an inquiry into
Bubjecte that have a reference to personal lib-

This subject has been spread over an immense
extent of ground. The single point, however,
at issue, is, whether we will commit this reso-
lution, in order merely to obtain correct fieicts
and information, which shall present the sub-
ject in such a tbrm as shall enable us to act
nnderstandingly upon it. I am not at present
in &vor of acting definitively upon it; but
merely for inquirv. So circumstanced, I pre-
aome our proceeaings cannot injure any indi-
viduals implicated in this business, as nothing
w^ can do can have a retro^[>ective effect
These are my reasons for voting in £ftvor of the
present motion.

Mr. J. Rakdolfh. — ^There has been a dispute
in the world frx}mtime immemorial between wit
and dullness— between imagination and judg-
ment. So we have been told, though some who
cultivate the sceptical philosophy dispute it
Bat 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 wis-

dom. While I am willing to allow that dedar
mation, or the powers of an effervescent imagi-
nation, are no evidences of wisdom, the House
must admit that the mere dullness of a speciid
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 unpre-
pared. I knew nothing of the subject until it
was brought under discussion. I got up yester-
day, as I have to-day, to say wlut first came
into my head, and in tiiis 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 hap-
pened to the United States. If we had acquired
Ix>ui8iana 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 peo-
ple are at all concerned; or whether they are
not standing like sheep, suffering the wolves to
pass without disturbaifoe — events which must
sow the seeds of lasting misfortune, unless heal-
ed 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 Gommander-in-chief^ taking it to be such as
is ascribed to hiuL 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 di«
rectiy or indireotiy concerned in this business.
You can hardly suppose, sir, that I look forward
to be made their Governor, or desire on my re-
commendation to introduce a friend to that
place. But I have no hesitation in saying that
unless some such step be t^en, 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 chil-
dren by the ears. I would correct them all, I
would discountenance at once all such intriguea
— ^I would recall eveiy man who has directiy or
indireotiy participated, or is suspected of having
participated in them — I would, in short, rub
out and begin again. It is an extremely unfor-
tunate thing that the people of New Orleans, for
the most part speaking the French language, a
great part of them attached to the Grown 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 lettre$ de eaehtt were
to be proscribed — ^that the constitution was not
to be departed from, but that they were to en-
Joy all the blessings of citizens of the United
States-— it is extremely unfortunate that New
Orleans should be the first place in which a les-
son of military despotism snould be taught I
deem it extremely unfortunate— it cannot tend
to attach those people to the United States; it

Digitized by




H. or R.]

Tke Writ of Sab&at Ccrp^

[Fbbbuabt, 1807.

will, however, have another tendency — it will
prevent every man of character fh>m emigrating
to that ooontry, and instead of mixing the
Americana with the French, the latter wiU he
kept as a distinct class. For will any man,
having the least regard to his righte, go to a
place where he will oe seised hr a military com-
mandant? Suppose, Mr. Speaker, snch a thing
had taken place in your conntry or mine. The
military would not at this period he hefore 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 ohliged to ^reak up and
move off. That spirit would scarcely endure
the legal set of a man acting under legal au-
thority, and yet we have now an apology for
men acting in direct contravention of legu au-
thority. Will sny man point out a good cause
for this change? '

The writ of haheas corpus is the only writ
sanctioned hy the constitution. It is guarded
from every approach except hy the two Houses
of Congress; and yet this writ, thus acknowl-
edged, thus specially designated, this second
llagna Oharta, as it hasheen called, is to he 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 he done even without the
writ of haheas corpus. But will gentlemen
point to anv legislative sanction hv which the
execution of tms writ is guarded? Perhaps
action on the case might l^ sustained for dis-
obeying it ; but suppose a Judge should deny it.
Impeach him, say gentiemen. But will gentle-
men rely on that? Tliat affords no certain
punishment, and an uncertain punishment is
madequate. We want a certain and adequate

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 constitu-
tion 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
Kew Orleans to be correctiy stated, the Com-
mander-in-chief b as mudi a traitor as any
other man* concerned in the conspiracy. Who
are these traitors? Burr4kCo. Whatarethey
about to do? To put down the civil authority
by military force; and is there any substantial
difference whether the civil authority is tram-
pled under foot by Burr and his banditti, or
Dy a coDunander-in-chief and his regidar armv ?
I will go farther. Suppose these measures for
puttmg down Burr shall eventually prove to

have been measures for putting up somebo^
else, in what will these men differ? Innothmg.
If the conmiander of an army, to give himsdf a
false edat, shall trample the constitution under
foot, shall go a certain length with conspirators
and finding his ground no longer tenable, shaD
determine to make up in zeal what he wanted
in fidelity, he is guilty of treachery to tite con-
stitution and laws— he is gpilty of more — he is
guilty of violating the principle respected by
knaves— the principle of fiddiiy to ^ch other.

The gentieman from Massachusetts (Mr.
Quikot) has stated the difference that exists
between the right of the writ of habeas corpus
and the remedy. He has correctiy stated tnat
it is not intended as a remedy — not to allow sn
action for false imprisonment — ^but to prevent
£&lse imprisonment, and therefore tiiat it oug^t
to be guarded by sanctions. But the gentieman
has omitted to mention one drcumstanoe, whiisfa
is, that in England the writ of habeas oorpus 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 refus-
ing to issue a writ of habeas corpus, may be un-
peaohed, 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 im-
peachment of Strafford, could there have been a
charge more strong than a settied design to do
away that privilege? In England a&o it is
guarded by the power of attainder. Thank
God I we have not that feature in our constitu-
tion. But if the same spirit pervades ^at
country now which once did, nothing would
sooner pass a bill of attainder, throu^^ the two
Houses of Parliament, than a known and wan-
ton invasion of this privilege. But fortunately
our constitution has denied to us this, power;
and it is because we cannot pass bills of attain-
der, and because judgments on impeachments do
not effect the life^ that it behooves us to euard

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 132 of 184)