Monday, January 26.
Another new member, to wit, William W. Bibb, from Georgia, returned to serve as a member for the said State, in the place of Thomas Spalding, who has resigned his seat, appeared, produced his credentials, was qualified, and took his seat in the House.
Suspension of the Habeas Corpus.
A message was received from the Senate, by Mr. Samuel Smith, as follows:
Mr. Speaker: I am directed by the Senate of the United States to deliver to this House a confidential message, in writing.
The House being cleared of all persons except the members and the Clerk, Mr. Smith delivered to the Speaker the following communication in writing:
Gentlemen of the House of Representatives:
The Senate have passed a bill suspending for three months the privilege of the writ of habeas corpus, in certain cases, which they think expedient to communicate to you in confidence, and to request your concurrence therein, as speedily as the emergency of the case shall in your judgment require.
Mr. Smith, also, delivered in the bill referred to in the said communication, and then withdrew.
The bill was read as follows:
A Bill suspending the writ of Habeas Corpus for three months, in certain cases.
Be it enacted, by the Senate and House of Representatives of the United States of America, in Congress assembled, That in all cases, where any person or persons, charged on oath with treason, misprision of treason, or other high crime or misdemeanor, endangering the peace, safety, or neutrality of the United States, have been or shall be arrested or imprisoned, by virtue of any warrant or authority of the President of the United States, or from the Chief Executive Magistrate of any State or Territorial Government, or from any person acting under the direction or authority of the President of the United States, the privilege of the writ of habeas corpus shall be, and the same hereby is suspended, for and during the term of three months from and after the passage of this act, and no longer.
Mr. P. R. Thompson moved that the message and the bill received from the Senate ought not to be kept secret, and that the doors be opened.
Mr. Burwell and Mr. Smilie spoke in support of the motion.
Mr. Early thought that a previous order should be taken to remove the injunction of secrecy. To open the doors and admit strangers to hear the debate, and yet continue the injunction of secrecy on members, would present a singular spectacle.
Mr. J. Randolph said they could not be bound to secrecy except by their own vote. If there was any charm by which they could be bound, except their own act, he wished it might be dissolved.
Mr. G. W. Campbell hoped the usual course would be pursued; read the bill a second time, and then refer it to a Committee of the Whole.
Mr. Alston thought the question, whether the bill should pass to a second reading, first in order.
The Speaker decided that the motion to open the doors was in order, and the question on that motion must first be taken.
The yeas and nays being demanded by one-fifth of the members present, they were ordered to be taken.
The question then was put on the motion, That the message and bill received from the Senate ought not to be kept secret, and that the doors be now opened; and resolved in the affirmative—yeas 123, nays 3.
Mr. Eppes moved that the bill be rejected.[46] This motion was afterwards withdrawn to give place to another motion, but with the idea of renewing it again.
Mr. Burwell said he was unacquainted with the particular reasons which had induced the Senate to pass this bill. None had been assigned when the bill was communicated, and no additional documents presented. He could, therefore, only be governed by that information which the House had received; and he believed that it would justify the motion before the House. The President, in his Message of the 22d, says, “on the whole, the fugitives from Ohio and their associates from Cumberland, or other places in that quarter, cannot threaten serious danger to the city of New Orleans.” If that be the case, upon what ground shall we suspend the writ of habeas corpus? Can any person imagine the United States are in danger, after this declaration of the President, who unquestionably possesses more correct information than any other person can be supposed to have. In another part of the Message, we are informed—
“That the persons arrested at New Orleans have been embarked for some of the Atlantic ports, probably on the consideration that an impartial trial could not be expected during the present agitations of New Orleans, and that that city was not as yet a safe place of confinement. As soon as these persons shall arrive, they will be delivered to the custody of the law, and left to such course of trial, both as to place and process, as its functionaries may direct; the presence of the highest judicial authorities to be assembled at this place within a few days, the means of pursuing a sounder course of proceedings here than elsewhere, and the Executive means, should the judges have occasion to use them, render it equally desirable, for the criminals as for the public, that being already removed from the place where they were apprehended, the first regular arrest should take place here, and the course of proceedings receive here its proper direction.”
The President evidently holds out the idea, that the correct and proper mode of proceeding can be had under the existing laws of the United States. These persons may be transferred from the military to the civil authority, and be proceeded against according to law. Those, therefore, who fear the escape of the traitors already apprehended, and would, by this measure, obviate the difficulty, must perceive that consequence would not ensue. Mr. B. said he should consider the suspension of the habeas corpus as holding out an idea of danger and alarm, which was highly improper, inasmuch as it did not exist. It is true, this conspiracy was once formidable, extensive, and threatening; but it has been dissipated by the vigilance of Government. He would ask gentlemen, if they seriously believed the danger sufficiently great to justify the suspension of this most important right of the citizen, to proclaim the country in peril, and to adopt a measure so pregnant with mischief, by which the innocent and guilty will be involved in one common destruction? He said this was not the first instance of the kind since the formation of the Federal Government; there had been already two insurrections in the United States, both of which had defied the authority of Congress, and menaced the Union with dissolution. Notwithstanding one of them justified the calling out of fifteen thousand men, and the expenditure of one million of dollars, he had not heard of a proposition to suspend the writ of habeas corpus. What, then, will be said of us, if now, when the danger is over, firm in the attachment of the people to the Union, with ample resources to encounter any difficulties which may occur, we resort to a measure so harsh in its nature, oppressive in its operation, and ruinous as a precedent? While, in former times, it was thought unsafe to suspend this most important and valuable part of the constitution, he would ask, whether the necessity at the present time could be considered greater? With regard to those persons who may be implicated in the conspiracy, if the writ of habeas corpus be not suspended, what will be the consequence? When apprehended, they will be brought before a court of justice, who will decide whether there is any evidence that will justify their commitment for further prosecution. From the communication of the Executive, it appeared there was sufficient evidence to authorize their commitment. Several months would elapse before their final trial, which would give time to collect evidence, and if this shall be sufficient, they would not fail to receive the punishment merited by their crimes and inflicted by the laws of their country.
Mr. B. said he could conceive no injury that would result on this score; and, indeed, if some persons should elude justice, it would not endanger society so materially as to come within the terms of the constitution. He observed, it appeared to him the commencement of an insurrection was the only time when the writ of habeas corpus ought to be suspended; when the seizure of the ringleaders, by dismaying the inferior agents, would enable the Government, without the effusion of blood, to suppress it. But it was manifest that, at this moment, every thing intended by the conspirators was effected, or they were in the hands of the civil authority; there was, therefore, no good reason to take this precautionary step with that view; while on the one hand, it would unavoidably produce unnecessary alarm, and much inconvenience to the citizens of the United States. Nothing but the most imperious necessity would excuse us in confining to the Executive, or any person under him, the power of seizing and confining a citizen, upon bare suspicion, for three months, without responsibility, for the abuse of such unlimited discretion. Mr. B. said he could judge from what he had already seen, that men, who are perfectly innocent, would be doomed to feel the severity of confinement, and undergo the infamy of the dungeon. What reparation can be made to those who shall thus suffer? The people of the United States would have just reason to reproach their representatives with wantonly sacrificing their dearest interests, when, from the facts presented to this House, it seems the country was perfectly safe, and the conspiracy nearly annihilated. Under these circumstances, there can be no apology for suspending the privilege of the writ of habeas corpus, and violating the constitution, which declares “the writ of habeas corpus shall not be suspended, unless when, in cases of invasion or rebellion, the public safety may require it.”
Mr. B. said he hoped he had shown that, admitting the two cases specified in the constitution existed, they were not accompanied with such symptoms of calamity as rendered the passage of the bill expedient.
What, in another point of light, would be the effect of passing such a law? Would it not establish a dangerous precedent? A corrupt and vicious Administration, under the sanction and example of this law, might harass and destroy the best men of the country. It would only be necessary to excite artificial commotions, circulate exaggerated rumors of danger, and then follows the repetition of this law, by which every obnoxious person, however honest, is surrendered to the vindictive resentment of the Government. It will not be a sufficient answer, that this power will not be abused by the President of the United States. He, Mr. B. believed, would not abuse it, but it would be impossible to restrain all those who are under him. Besides, he would not consent to advocate a principle bad, in itself, because it will not, probably, be abused. For these reasons, Mr. B. said, he should vote to reject the bill.
Mr. Elliot said that he regretted the motion to reject the bill had been made, because, considering the subject of very great importance, he thought it most proper that it should take the usual course of business, that the bill should be read a second time, and referred to a Committee of the Whole, for the purposes of deliberation and discussion.
Called upon, however, said Mr. E., to answer to the question, Shall the bill be rejected? I must answer that question in the affirmative, as I should deem it my duty to advocate its rejection in any form which it might assume, and in any stage of its progress; and I deem it equally my duty, on the present occasion, to express my sentiments upon the subject. It is, indeed, difficult for me, consistently with the sincere and high respect which I entertain for the source from whence this measure originated, to express, in decorous terms, the hostility which I feel to the proposition. I am therefore disposed to consider it as an original proposition here; as a motion in this body to suspend, for a limited time, the privileges attached to the writ of habeas corpus. And, in this point of view, I am prepared to say that it is the most extraordinary proposition that has ever been presented for our consideration and adoption. Sir, what is the language of our constitution upon this subject? “The privilege of the writ of habeas corpus shall not be suspended, except when, in cases of invasion or rebellion, the public safety shall require it.” Have we a right to suspend it in any and every case of invasion and rebellion? So far from it, that we are under a constitutional interdiction to act, unless the existing invasion or rebellion, in our sober judgment, threatens the first principles of the national compact, and the constitution itself. In other words, we can only act in this case with a view to national self-preservation. We can suspend the writ of habeas corpus only in a case of extreme emergency; that alone is salus populi which will justify this lex suprema. And is this a crisis of such awful moment? Is it necessary, at this time, to constitute a dictatorship, to save the people from themselves, and to take care that the Republic shall receive no detriment? What is the proposition? To create a single Dictator, as in ancient Rome, in whom all power shall be vested for a time? No; to create one great Dictator, and a multitude, an army of subaltern and petty despots; to invest, not only the President of the United States, but the Governors of States and Territories, and, indeed, all persons deriving civil or military authority from the supreme Executive, with unlimited and irresponsible power over the personal liberty of your citizens. Is this one of those great crises that require a suspension, a temporary prostration of the constitution itself? Does the stately superstructure of our Republic thus tremble to its centre, and totter towards its fall? Common sense must give a negative answer to these questions. What are the facts? Is it, indeed, a case of rebellion? We are officially informed that rebellion has reared its hydra front in the peaceful valleys of the West. But we are also informed by the Executive that treason has no prospect of success; that “the fugitives from the Ohio, and their associates from Cumberland, cannot threaten serious danger even to the city of New Orleans.” Not a single city, still less a Territory or a State, is considered in danger; and the Executive, not only possesses all the information which has been communicated to us, but much more, for we are informed that the communication has been made under the reservation contained in the resolution requesting it, and of course all the facts in the knowledge of the Executive, which are decided to be improper for disclosure at this time, have been kept back. And the Executive, possessing all this information, assures us that the public safety is not endangered. Can we, under these circumstances, consent to the investiture of dictatorial powers in that department of the Government which thus assures us that all is safe? It would be contrary to the spirit of the constitution.
But we shall be told that the constitution has contemplated cases of this kind, and, in reference to them, invested us with unlimited discretion. When any gentleman shall advance such a position, we, who advocate the rejection of the bill, will meet him upon that ground, and put the point at issue. We contend that the framers of the constitution never contemplated the exercise of such a power, under circumstances like the present; and that the constitution itself, instead of authorizing, has prohibited such discretion, unless in an extreme case. And can any member lay his hand upon his heart and say, that the present is a case of that description? He who cannot do this must, with us, consider the proposed measure as unconstitutional.
Let us pay a little attention to the nature and character of the writ of habeas corpus. It has its origin in Great Britain, and is there considered in two great points of view, as it respects the monarch, and as it respects the subject. As it respects the monarch, it is one of the jura prerogativa, a writ of prerogative; but it is not considered as calculated to increase the power of the king, or the splendor of the throne; in its origin and true character it is viewed as a prerogative, exercised by the king, or those authorities to whom his judicial powers are supposed to be delegated, only for the purpose of securing the constitutional rights of the subject, and restraining the invasion of those rights. As it respects the subject, it is a writ of right, and is emphatically called, by English writers, a writ of liberty.
By the provisions of the famous statute of Charles II., which has even been called a second magna charta, its privileges are guarantied to all British subjects at all times. An eminent English author, and the most popular writer upon subjects of legal science, considers its suspension as the suspension of liberty itself; declares that the measure ought never to be resorted to but in cases of extreme emergency; and says that the nation then parts with its freedom for a short and limited time, only to resume and secure it for ever. Hence, he compares the suspension of the habeas corpus act in Great Britain to the dictatorship of the Roman Republic.
But objectionable as the bill upon the table is in point of principle, it is, if possible, still more objectionable in point of detail. It invests with the power of violating the first principles of civil and political liberty, not only the supreme Executive, and the Executives of individual States and Territories, but all civil and military officers who may derive any authority whatever from the Chief Magistrate. And it extends the operation of the suspension of the privileges of the habeas corpus, not only to persons guilty or suspected of treason, or misprision of treason, but, to those who may be accused of any other crime or misdemeanor, tending to endanger the “peace, safety, or neutrality,” of the United States! What a vast and almost illimitable field of power is here opened, in which Executive discretion may wander at large and uncontrolled! A vast and dangerous scene of power, indeed! It gives the power of dispensing with the ordinary operation of the laws to a host of those little great men, who are attached to every Government under heaven. I wish not to reflect upon any of those subordinate officers who may be employed by the Government of my country.
But no one will doubt that, in times of alarm and danger, many men will be clothed with the functions of office, who are incompetent to the discreet exercise of such boundless discretion. I can never wish to see such persons invested with the means of aiming at the heads of their private enemies, or other innocent and unoffending citizens, the thunderbolts of public indignation, or scorching them with the lightning of public suspicion. Says the poet:
“Could great men thunder, Jove would ne’er be quiet,
For every petty pelting officer
Would use his heaven for thunder.”
Let us again ask for evidence of the necessity of this measure? Certainly none can be produced, for we are informed, from the first authority, that if the present be not a time of profound peace, it is far from being a period of public danger. The leader of this petty rebellion has been called the modern Catiline. Undoubtedly, he possesses many of the qualities which a celebrated ancient historian ascribes to the Catiline of Rome: his genius, his address, his activity, his profligacy; but he is destitute of his means and resources. He wants that power of doing mischief which the Roman conspirator possessed. So far is he from being able to make war upon his country, that he cannot take possession of a single city. He is rapidly hastening to the same fate, although he may not meet it in the same manner. Already is he “damn’d to everlasting fame,” or rather, damned to everlasting infamy. Already is he a fugitive. Already a price is set upon his head. In the papers of this morning, we see that the Governor of Orleans has offered a reward for his apprehension. We cannot but detest the traitor, but we can have no fears of the consequences of the treason.
Mr. E. concluded, by expressing a hope that the bill would meet a decided vote of rejection.
Mr. Eppes.—When I feel a decided hostility to a principle, it is not material to me in what form I meet it. Decidedly opposed to the principle of this bill, I shall vote against it in all its stages, and cannot but hope that the motion of my colleague to reject it will prevail. By this bill, we are called upon to exercise one of the most important powers vested in Congress by the Constitution of the United States. A power which suspends the personal rights of your citizens, which places their liberty wholly under the will, not of the Executive Magistrate only, but of his inferior officers. Of the importance of this power, of the caution which ought to be employed in its exercise, the words of the constitution afford irresistible evidence. The words of the constitution are: “The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” The wording of this clause of the constitution deserves peculiar attention. It is not in every case of invasion, nor in every case of rebellion, that the exercise of this power by Congress can be justified under the words of the constitution. The words of the constitution confine the exercise of this power exclusively to cases of rebellion or invasion, where the public safety requires it. In carrying into effect most of the important powers of Congress, something is left for the exercise of its discretion. We raise armies when, in our opinion, armies are necessary. We may call forth the militia to suppress insurrection or repel invasion, when we consider this measure necessary. But we can only suspend the privilege of the habeas corpus, “when, in cases of rebellion or invasion, the public safety requires it.” Well, indeed, may this caution have been used as to the exercise of this important power. It is in a free country the most tremendous power which can be placed in the hands of a legislative body. It suspends, at once, the chartered rights of the community, and places even those who pass the act under military despotism. The constitution, however, having vested this power in Congress, and a branch of the Legislature having thought its exercise necessary, it remains for us to inquire whether the present situation of our country authorizes, on our part, a resort to this extraordinary measure.
The inquiry is confined within very narrow limits. The power can only be exercised under the constitution, “when, in cases of rebellion or invasion, the public safety may require it.” Our country is not invaded. We have only, therefore, to inquire whether there exists in this country a rebellion, and whether the public safety requires a suspension of the habeas corpus. Of the existence of the rebellion or combination against the authority of the United States there can be no doubt, as we have on our table a detailed account of its origin and progress. I shall confine my observations solely to the latter part; whether the public safety requires a suspension of the habeas corpus for its suppression. In the communication now on our table, from the Executive, we have been informed that the militia of Ohio, Kentucky, and Tennessee, and of the Mississippi and Orleans Territories, have been ordered out. That General Wilkinson was at Orleans, on the 10th of December, with his troops from the Sabine, which from other information we know to consist of one thousand effective men. These are resources of the nation now in active operation. What is the force of the conspirators? By the same documents, we are informed that “some boats, accounts vary from five to double or treble that number, and persons, differently estimated from one to three hundred, had passed the falls of the Ohio to rendezvous at the mouth of Cumberland river, with others expected down that river.” From the same document it appears that the force which comes down Cumberland river amounts to two boats, in one of which is Aaron Burr. From this statement, it appears that the largest calculation as to the actual force of the conspirators, is three hundred. But when we know the propensity of human nature to magnify accounts of this kind, we may fairly infer that the whole force does not exceed one hundred and fifty men. To oppose which, we have one thousand regular troops, and the militia of Ohio, Kentucky, and Tennessee, and of the Mississippi and Orleans Territories. Is there a man present who believes, on this statement, that the public safety requires a suspension of the habeas corpus? This Government has now been in operation thirty years; during this whole period, our political charter, whatever it may have sustained, has never been suspended. Never, under this Government, has personal liberty been held at the will of a single individual. Shall we, in the full tide of prosperity, possessed of the confidence of the nation, with a revenue of fifteen millions of dollars, and six hundred thousand freemen, able and ready to bear arms in defence of their country, believe its safety endangered by a collection of men which the militia of any one county in our country would be amply sufficient to subdue? Shall we, sir, suspend the chartered rights of the community for the suppression of a few desperadoes; of a small banditti already surrounded by your troops; pressed from above by your militia; met below by your regulars, and without a chance of escape, but by abandoning their boats, and seeking safety in the woods? I consider the means at present in operation amply sufficient for the suppression of this combination. If additional means were necessary, I should be willing to vote as many additional bayonets as shall be necessary for every traitor. I cannot, however, bring myself to believe that this country is placed in such a dreadful situation as to authorize me to suspend the personal rights of the citizen, and to give him, in lieu of a free constitution, the Executive will for his charter. I consider the provision in the constitution for suspending the habeas corpus as designed only for occasions of great national danger. Like the power of creating a Dictator in ancient Rome, it prostrates the rights of your citizens and endangers public liberty. Like that it may, on some very extraordinary occasions, prove salutary, but like that, it ought never to be resorted to but in cases of absolute necessity; or, to use the emphatic language of the constitution, “when the public safety requires it.” Believing that the public safety is not endangered, and that the discussion of this question is calculated to alarm the public mind at a time when no real danger exists, I shall vote for the rejection of the bill in its present stage.
Mr. Varnum said if he was of opinion with the gentlemen from Vermont and Virginia, he should vote for the rejection of this bill; but he entertained a different opinion, and, unless he heard something to change it, he should vote differently from them. He did not believe the constitution restricted the power of the Government to suspend the privilege of the habeas corpus in cases where the country was shaken to its centre. There were no expressions in it to justify this inference. Its terms are: “The privilege of the writ of habeas corpus shall not be suspended, except when, in cases of invasion or rebellion, the public safety shall require it.” Will gentlemen deny that there exists in the United States at present a rebellion? I presume not, said Mr. V., it is too notorious to admit of doubt. Will they deny that the conspiracy has been formed with deliberation, and has existed for a long time? Is it not evident that it has become very extensive? If, then, this is the case, and the head of the conspiracy has said that he is aided by a foreign power; if this is true, are we justified in considering the country in a perfect state of safety, until it is brought to a close? I conceive not. I consider the country, in a degree, in a state of insecurity; and if so, the power is vested in the Congress of the United States, under the constitution, to suspend the writ of habeas corpus. I am also apprehensive that we shall not be able to trace the conspiracy to its source without such a suspension. We have had an instance in which the head of the conspiracy has been brought before a court of justice, and where nothing has been brought against him. It is not my wish to insinuate that any court or public functionary is contemplated by this conspiracy; yet it is possible that this may be the case, and the very existence of the country may depend on tracing it to its source. I am not disposed to advocate sanguinary punishments, but I think they ought to be exemplary in regard to the chiefs of the conspiracy; for which purpose we ought to adopt those measures which will lead to a full discovery of those concerned in it. I am sensible that the Government of the United States has not hitherto resorted to this measure; but I know a particular State of the Union who did consider the measure necessary, in the case of an insurrection which occurred within her limits; and I think it very doubtful whether that insurrection would have so happily closed, if it had not been for her suspension of the writ of habeas corpus. Have we had any insurrection or rebellion in the United States like this? We have had one insurrection in Massachusetts, but whence did it arise? Not from a design to subvert the Government, but from the burden of taxes; taxes which, perhaps, exceeded those laid in any country since the formation of society. I do not mean, by these observations, by any means to justify that insurrection, and, I believe, from the circumstances with which I am acquainted, that the insurrection which took place in Pennsylvania did not go to the subversion of the Government. But let us look at this conspiracy. While the nation, from one extreme to the other, enjoys a degree of prosperity and happiness unparalleled in any other nation, and not a single individual within our limits has any reason to complain of oppression, an insurrection is fomented, subversive of the Government and destructive of the rights of the people. It appears to me that this insurrection is the most aggravating of all insurrections which history gives us an account of. There is not the least oppression or the least pressure of circumstances, to induce any individual to rise up against the Government of this country; and it consequently betrays the greatest turpitude of mind 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 doubtful whether this can be effected without, in the first instance, suspending the habeas corpus. Will gentlemen say that any innocent man will have a finger laid upon him, should this law pass? No; there is no probability of it; it is scarcely possible. But, even if it be possible, if the public good requires the suspension of the privilege, every man attached to the Government and to the liberty he enjoys, will be surely willing to submit to this inconvenience for a time, in order to secure the public happiness. The suspension only applies to particular crimes, the liberties of the people will not therefore be touched. I do think a great responsibility will rest on this branch of the Legislature, in case they refuse to pass this act. Suppose the head of this conspiracy shall be taken in a district of country where no evidence exists of the crime charged to him, and he shall consequently be set at liberty by the tribunals of justice; where will the responsibility rest, but upon this branch of the Legislature? It is too great for me, as an individual member, to bear. I shall, therefore, vote for this bill, under the impression that it will not have the injurious effects that some gentlemen seem to apprehend; and that it will only more effectually consign the guilty into the hands of justice.
Mr. R. Nelson.—As the motion to reject the bill 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 vote on it. I shall, however, in order to avoid an unnecessary consumption of the time of the House, offer my remarks in as concise a compass as possible. I shall first consider the nature of the writ of habeas corpus; afterwards examine its effects, not only on the individual, 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 refusal to pass this bill.
What is a writ of habeas corpus? It is a writ directing a certain person in custody to be brought before a tribunal of justice, to inquire into the legality of his confinement. If the judge is of opinion that the confinement is illegal, the person will of course be discharged; if, on the contrary, from the evidence, he shall be of opinion that there is sufficient 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 necessary 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 is denied an examination before a judge or a court, he may, although innocent in this case, continue to suffer confinement. This, in my opinion, is dangerous to the liberty of the citizen. He may be taken up on vague suspicion, and may not have his case examined for months, or even for years. Would not this bear hard upon the rights of the citizen?
Let us turn over a leaf, and see how the Government stands. If the person accused is legally committed, or if it shall be proved that he has committed any offence, the judge will say that he shall not be released. If he has committed an offence, there can be no grounds for this suspicion, because, without such suspension, he will not be discharged, because it does 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 confinement.
This is a writ of right, which ought to exist under all governments on earth. What right? The right of being examined by the tribunals of his country, to determine whether there is any ground for the deprivation of his liberty. Is this a right which ought to be suspended merely to gratify the apprehensions of gentlemen? I think not. The framers of the constitution have said: “the privilege of the writ of habeas corpus shall not be suspended, except when, in cases of invasion or rebellion, the public safety shall require it.” Well, but, says the gentleman from Massachusetts, can any one deny that this is a rebellion? It may perhaps be, but I think it does not deserve the name of a rebellion; it is a little, petty, trifling, contemptible thing, led on by a desperate man, at the head of a few desperate followers: a thing which might have been dangerous, 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 invasion or rebellion, the public safety shall require it.” Does, then, the public safety require this suspension? Does the constitution justify it? And, under present circumstances, 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 precedent—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 land enable him to do; he will resort to this as a precedent, and this important privilege will be suspended at the smallest appearance of danger. The effect will be, that whenever a man is at the head of our affairs, who wishes to oppress or wreak his vengeance on those who are opposed to him, he will fly to this as a precedent; it will truly be a precedent fraught 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 opinion, it can be necessary.
In my opinion, this is a measure which ought never to be 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 countenance 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 from you. But I apprehend there is no such danger here, and I repeat it, we are at once creating one of the most dangerous precedents, and passing one of the most unjust acts that was ever proposed.
Mr. Sloan.—At the same time that I express my purpose to vote on the same side with the gentleman from Maryland, I shall take the liberty of assigning very different reasons for my vote from those offered by him. The gentleman from Virginia has mentioned two preceding insurrections, which he considers of much greater magnitude than this. I am of a different opinion. 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 insurrections, or as I think they might, with more correctness, be termed, oppositions to Government. In consequence of certain citizens thinking themselves aggrieved by certain acts, in which they have been, in some measure, justified by their subsequent repeal, a handful of people raised in opposition to their execution. What analogy do those oppositions bear to this rebellion? I consider the late or present conspiracy to be of greater magnitude than any we know of in history. Under what authority has it been created? Under that of a man of great abilities and experience, who states that he expects 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? I, therefore, consider it of great magnitude, and it is certainly excited against the best government on earth, under which the people enjoy the greatest happiness. I shall, however, vote against the bill, under the belief that we may confidently rely on the love and affection of the people for their Government, to which we are already probably indebted for its suppression. Had this measure been brought forward a month or six weeks ago, I should have voted for it.
Mr. Bidwell said, although he was not satisfied of the necessity of passing this bill, he was not prepared to reject it, in its present stage. As it had received the sanction of the Senate, he was disposed to treat it as a subject worthy of discussion and deliberation, by referring it in the usual course, to a Committee of the whole House. Before the passing of any bill of this nature, the House ought to have satisfactory proof that a rebellion in fact existed, (for there was no pretence of an invasion,) and that the public safety required a suspension of the privilege of habeas corpus. By the terms of the constitution, both of these pre-requisites must concur, to authorize the measure. The first inquiry would naturally turn upon the existence of a rebellion. On that point he had no doubt. To constitute a rebellion, in the sense of the constitution, he did not think it necessary that a battle should have been fought, or even a single gun fired. If troops were enlisted, assembled, organized, and armed, for the purpose of effecting a treasonable object, it amounted to actual rebellion. Such was the existing state of things. The public notoriety of the fact was, perhaps, sufficient evidence for the Legislature to act upon, if necessary; but they had also the official statement of the President to that effect. He had, therefore, no doubt of the existence of a rebellion, and that, too, of a more wanton and malignant character than any insurrection which had heretofore been raised against our Government; 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 this aggravated description, was not alone sufficient to justify a suspension of the writ of habeas corpus. To bring it within constitutional justification, it must be required by the public safety. That was a matter of opinion, rather than of fact. He was convinced that the proposed suspension was not requisite for the purpose of suppressing the conspiracy; for by the vigilance 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 suppressed, and he trusted the means now in operation would complete the suppression. A suspension of the habeas corpus could not be necessary, except for the detection and conviction of the conspirators. A thorough investigation ought undoubtedly to be made. If any persons concerned in the conspiracy were arrested in situations which precluded an immediate production of such evidence as would warrant their confinement, justice would require that they should be detained until the proper evidence could be procured; but in the mean time they might be discharged by virtue of a habeas corpus; for, though he agreed with the gentleman from Maryland, (Mr. Nelson,) in the importance and utility of this writ, he could not subscribe to the doctrine which he understood that gentleman to maintain, that it would entitle a person to a discharge only for causes of irregularity in the arrest. Want of legal evidence to show, by oath or affirmation, probable cause for detention, would be a ground of discharge. In ordinary cases, indeed, the release and escape of a guilty person, for such want of evidence, was esteemed a smaller evil than a denial of the common privilege. If it were so in respect to this conspiracy, there was, in his opinion, no good reason for passing this bill. That was a point which appeared to him worthy of some deliberation.
It had been mentioned in the debate, that in the whole history of our Government, notwithstanding two insurrections, the habeas corpus had, in no instance, been suspended. It was true. But an instance had been cited from one of the States. During the insurrection in Massachusetts there was such a suspension, in pursuance of a constitutional provision; and it was generally acknowledged to have been a necessary and salutary measure. He had never understood that it was abused, or that it was considered by the people of that State, a dangerous example. It was justified by the occasion. But it did not, therefore, follow, that a similar suspension would be justifiable on this occasion. That must depend on the present state and circumstances of the nation. Although a rebellion existed, he was not satisfied that the public safety required so strong and severe a measure. But, 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 Committee of the Whole; and therefore, he should not give his vote for rejecting it in the present state.
Mr. J. Randolph.—I shall give my 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 quarter whence that opposition originated; and I subscribe with great pleasure to the sound constitutional doctrine, which the gentleman from Pennsylvania advanced this morning before our doors were opened. We are now told that to reject this bill at its first reading, will be to depart from the usual course of proceeding in this House, and an attempt is made to enlist the feelings of members 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 between the two Houses. I do not, however, consider the subject in this light. I conceive, on the contrary, it is as competent to us to reject the bill on its first as on any other reading. I well recollect that about eight years ago an important bill was smuggled through the House by this fastidious mode of proceeding. Gentlemen were allured from their honest opinions, and finally, by finesse and management, 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 be 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 pursued 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 other 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 bill to pass to a second or third reading, as to say that though we are opposed to the principle contained in a resolution which may originate in this House, we nevertheless permit a committee to bring in a bill to carry it into effect, because we may destroy the bill at its last stage. This appears to be a strange course of reasoning. It is like permitting yourselves to be bound 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 this subject, but when a subject is so clear that every man has made up his mind upon it, where is the need of discussion? If it is not so clear, will any gentleman say that the discussion now had, in which every member has a right to speak twice, which is once more in my opinion than is necessary, will not be sufficient to develope all the merits and demerits of the bill? Will gentlemen undertake to say, if every member shall give the mature, or as it may be, crude suggestions of his mind, that the subject will not be 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 be decided in its present stage as before a Committee 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 this time to reject the bill. I, however, feel no such respect on this occasion, and shall express none. On the contrary, I am free to declare, that when a measure, tending to impose a burden on the people, or to detract from the privileges of the citizen, comes from that quarter, I shall always view it with jealousy. The inequality of the representation in that branch, the long tenure of office, and the custom with which they are so familiar of conducting their proceedings in conclave, (the House will recollect how long it was after the adoption of the constitution before the public could get admission into their twopenny gallery,) render all their proceedings touching the public burdens, or the liberties of the people, highly suspicious. And to say the truth, I am not at all surprised that they did close their doors on this occasion, that they might not be under the inspection of the public eye, while they were passing 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 bill, besides that of the quarter from which it originated, or the manner in which it has been presented to the House. It appears to my mind like an oblique attempt to cover a certain departure from an established law of the land, and a certain violation of the Constitution of the United States, which we are told have been committed in this country. Sir, recollect that Congress met on the first of December, that the President had information of the incipient stage of this conspiracy about the last of September—that the proclamation issued before Congress met, and yet that no suggestion, either from the Executive or from either branch of the Legislature, has transpired touching the propriety of suspending the writ of habeas corpus until this violation 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 be suspended, because it has been already violated, and 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, however infamous and contemptible. When those principles were prostrated under the sedition law, what did we say? That the character of the man accused could not change the laws of the land, or impair his rights—that 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 continue 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 remaining ideas I have to offer in a few words. There is another consideration which renders this bill 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 military government is subject to the civil power, or the civil authority to the military. I conceive that a case has occurred, in which the military has not only usurped the civil authority, but in which it has usurped nothing short of omnipotent power; and I consider this bill as calculated to give a softening and smoothing over to this usurpation; and on this ground I cannot assent to it. Suppose this bill either to pass or not to pass, what has been the practice under the constitution? By the expression, under the constitution, I do not mean conformably to it. Men have been taken up by a military tribunal, and have been transported contrary to law. I say transported, for if a man can be transported from the district where the offence with which he is charged was committed, he may also be deported to Cayenne, or transported to Botany Bay. And even you yourself, (addressing the Speaker,) 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 choose. To this I will never give my consent. It has been very well remarked by my colleague, that this is not the first case in which an insurrection 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 the writ of habeas corpus.
I put it to any man, whether, now that we have received information of the extent of this conspiracy, and when we find that Catiline, Cethegus, and Lentulus, have not as many brother conspirators as themselves, this conspiracy is equal to that in Pennsylvania in 1794 or 1795? In physical force it is not comparable to it, however in intellectual talent it may be. I conceive then that according to the Constitution of the United States, there is but one case in which the writ of habeas corpus can be suspended, 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 privilege 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 gentlemen may dignify this conspiracy, I am not even of the opinion of the gentleman from Maryland (Mr. R. Nelson)—I think it nothing more nor less than an intrigue—and I am happy that I can declare on the honor, not of a soldier, but of a citizen, that I believe it to be a foreign intrigue, availing itself of domestic materials for answering its purposes, and poor indeed must be the soil of this, or of any other state of society, which would not furnish such materials.
A gentleman from Massachusetts has stated to the House that the organization and administration of the Government, at this time, forbids the apprehension of any abuse being made of the powers delegated under this law. Surely, sir, the gentleman could not mean to urge this as any thing new. He must have known, if he had consulted history—as doubtless he has—that the king de facto, and the administration de facto, are always above suspicion. That there never was a proposition brought forward, that did not find a majority ready to say, There is surely no danger of any improper use of this power in our time, for we are all honorable men, and we would not delegate it, if an improper use could be made of it; and that, if we reject a measure, we ought not to do it so much on account of ourselves, as on account of those who come after us. And what will those who come after us say of us? They will follow our example, and declare that the character of their forefathers was above every doubt and every suspicion. Now, for myself, I beg leave to be permitted to disclaim every argument of this kind. I do not, indeed, consider it fair to introduce such an argument. Let us take up the question on its own merits and demerits, without any allusion or reference to our own virtues, or the degeneracy of posterity. For myself, I have no hesitation in saying that I will not grant this power at any time, except under the most imperious necessity; and I say this without any disrespect to this honorable body, or to any of the public functionaries. Take man as he is, and in his best estate, you find him an animal prone to abuse and corruption. There does not exist a single constitution or law in the world, that does not enforce this salutary truth.
I shall consider this bill, if it passes, as establishing a new era in the Government. When I was a boy, I recollect to have consulted such chronological tables as I could get access to. I recollect to have read, that at a certain time, monarchy was abolished in Rome; a little while after, the first Dictator was named; then the second Dictator—and I believe, as in a case of apoplexy, she scarcely got over the third fit. I believe a suspension of the writ of habeas corpus might have, here, the same effect as the establishment of the first Dictatorship at Rome. In what situation would it place yourselves and the citizens of this country? It would leave them at the mercy, not merely of a justice of the peace, but at the mercy of every subaltern officer of the army and navy. I believe it would comport as much with the safety and interest of this confederacy to give us power to send these people off, as to put this power in their hands. I believe we should be as trustworthy as they. And, let me ask, what compensation to an innocent man, to a man of honor and feeling, to a man of character, who should be tied neck and heels and sent off to New Orleans, and who should ultimately be proved to be innocent—I ask what compensation it would be to him to bring an action of damages? Against whom? A man without visible property? And what action? An action on the most mercenary principle. To be indemnified in his fame by dollars and cents. The injury would be irreparable. At present, all stand under the law. If any one offend, let him be brought under it. But, in this way, to put a man in an oyster boat, or skipper, and transport him to a distance from the place of his arrest, and then say he shall have a remedy, in case of his innocence, against an inferior officer, is absurd. If we pass such a bill, which God forbid! it should contain a large appropriation, and Government should be obliged to make good the injured party—to afford him redress. I say they should grant a large appropriation, for it is not for men with epaulets and gold buttons to make reparation. If the bill passes, we are told it will be but temporary. Why, the Sedition law was but temporary; and I think, sir, (alluding to the Speaker,) you were one of those who aided its passage—much against your will—by being present at the altar when it was more than once re-enacted. As to its three months continuance, I consider that as one of the most objectionable features of the bill—as a bait to the trap; as the entering wedge. If it is made reconcilable to the interests and feelings of this House to pass it for three months, do you think we will then feel the same lively repugnance to it that we now do? No! It has been truly said, that no man became perfectly wicked at once; and it may be affirmed, with equal truth, that a nation is never enslaved at once. Men must be initiated by degrees, and their repugnance must be gradually overcome. Let me state a case. It is proposed to extend the time of service of the Executive Magistrate from four, to five, or eight years, or for life. If it be prolonged for a term, do you believe we shall stop at its expiration? No! Once extended for life, he will then claim the power to choose his successor, and the hereditary principle will follow. This is the old trick. Let me, however, tell gentlemen that old birds are not to be caught with chaff, though, unfortunately for them, the mass of mankind does not consist of old birds. Pass one other law, and I would quit the country. A twin brother to this same bill was introduced into the British Parliament in 1794; and that bill to prevent seditious assemblies, was brought forward for about as good reasons as this. According to it, if four or five persons assembled, and refused on the notice of a magistrate, to disperse, they were considered guilty of sedition, and were dispersed by force. These two bills form a complete tyranny—and tyranny of the most odious kind, because established under the mask of liberty. Was the tyranny of Robespierre less intolerable, oppressive, or odious, because inflicted in the name of the people, than a like tyranny in Turkey, under the Grand Seignor and his Muftis? Take one other thing along with you. These two fatal wounds, inflicted on the liberties of the English nation, were inflicted by the man who came forward in the character of a reformer—by the man who came forward as the advocate of a Parliamentary reform; from which circumstance he acquired that popularity which enabled him to inflict those deadly wounds on the liberty of his country.
Having said so much with regard to the principle, permit me to add one word on the details of the bill. There is a departure in it from the known, accustomed, and received language of the constitution, in the use of the word “authority.” The words are “warrant or authority.” The expression is, in my opinion, too lax. Perhaps, we may be told, that the bill may be amended on the third reading. But my objection to the principle contained in it is such, that I will not consent to carry to a third reading that which under no amendment can be rendered palatable to my taste. Mr. R. concluded by observing that he had so far exhausted himself that he was unable to go on.
Mr. Smilie.—I shall not detain the House long by the remarks which I propose to make on this subject. I shall waive all observations on the mode of proceeding on this occasion—whether we shall reject the bill on its first, or suffer it to go to a second reading. The question is now put, and I am called upon to give my vote, either in the affirmative or negative. I, therefore, feel under a necessity to put my negative upon it. I consider this one of the most important subjects upon which we have been called to act. It is a question which is neither more nor less than, whether we shall exercise the only power with which we are clothed, to repeal an important part of the constitution? It is in this case only, that we have power to repeal that instrument. A suspension of the privilege of the writ of habeas corpus is, in all respects, equivalent to repealing that essential part of the constitution which secures that principle which has been called, in the country where it originated, the “palladium of personal liberty.” If we recur to England, we shall find that the writ of habeas corpus in that country has been frequently suspended. But, under what circumstances? We find it was suspended in the year 1715, but what was the situation of the country at that time? It was invaded by the son of James II. There was a rebellion within the kingdom, and an army was organized. The same thing happened in the year 1745. On this occasion it was found necessary to suspend it. In latter times, when the Government had grown more corrupt, we have seen it suspended for an infinitely less cause. We have taken from the statute book of this country, this most valuable part of our constitution. The convention who framed that instrument, believing that there might be cases when it would be necessary to vest a discretionary power in the Executive, have constituted the Legislature the judges of this necessity, and the only question now to be determined is, Does this necessity exist? There must either be in the country a rebellion or an invasion, before such an act can be passed. I really doubt whether either of these exist. I really doubt whether a single law of the United States has been, as yet, violated. I will not say this is the fact; but I do not know any thing to prove the contrary. But, supposing that a rebellion does exist, we are then left at liberty to decide whether it is such a one as to endanger the peace of society to such a degree that no ordinary remedy will answer. If an ordinary remedy will not, it may be our duty to apply an extraordinary one. What is this mighty business? What is the opinion of the Executive as to its danger? Does he consider it dangerous? It is a little remarkable that, in every instance under the British Government, the proposition of such a measure originated with the Executive, while here, without any intimation of danger from the Executive, we propose, on our own suggestion, to suspend one of the most valuable privileges that is secured to the citizen. Let us attend to the communication of the President on this subject. He states that, according to his information, the persons concerned in the conspiracy depend on receiving two kinds of aid; foreign aid, and aid derived in their own country. After giving his opinion of the foreign aid expected, he says:
“On the whole, the fugitives from the Ohio, with their associates from Cumberland, or any other place in that quarter, cannot threaten serious danger to the city of New Orleans.”
The President declares that, in his opinion, there is no danger to be apprehended. With regard to foreign force, he states his reasons for thinking there is no danger. As the Message is in the hands of every gentleman, there can be no necessity for me to read it. But he explicitly declares, from the state of our relations with other nations, there can be no danger from that quarter. This being the deliberate opinion of the Executive Magistrate, who is more deeply responsible on this occasion than any other member of the Government, is it not most extraordinary that we should attempt to take steps which can only be justified in the last resort? Are gentlemen aware of the danger of this precedent? This is the first attempt ever made under the Government to suspend this law. If we suspend it when the Executive tells us there is no danger, on what occasion may it not be suspended? Let us suppose that it shall be suspended on this occasion, what will be its effect? Parties will probably for ever continue to exist in this country. Let us suppose a predominant party to conjure up a plot to avenge themselves. Do not gentlemen see that the personal liberty of all their enemies would be endangered? I mention this to forewarn gentlemen of the dangerous ground before them. I do not say that our country may not, at some future day, be in such a situation as to justify such a suspension, but I have never yet seen her in such a situation, and, at this moment, I think it does not exist. When we see the great body of the people so firmly attached to their Government, ought we to be thus alarmed on beholding a few desperate and unprincipled men attempting to stir up an insurrection? There is another consideration which will induce me to give my hearty negative to this bill. If foreign nations see that we are obliged, under such circumstances, to suspend the writ of habeas corpus, will it not show that the constitution is incapable of supporting itself, without the application of the most dangerous and extraordinary remedies?
Mr. Dana.—I understand that the question is, whether the bill shall be rejected on its first reading, without passing through the ordinary forms of proceeding. In such cases, the ordinary question is, Is there any thing in the bill proper for the House to deliberate upon? If they are of opinion that it can be modified in such a way as to ensure its passage, it ought to go to a Committee of the Whole. This was my opinion when the motion was first made to reject the bill. I was disposed to vote against the question, although the bill went to repeal the constitution. I have been accustomed to view the privilege of the writ of habeas corpus as the most glorious invention of man. I was notwithstanding, however, from a respect to the other branch of the Legislature, disposed to investigate the subject—to examine whether there was any necessity for it. As, on the one hand, I was inclined to believe that the judgment of the Senate had, on this occasion, been tinged by a strong abhorrence of rebellion; so I was willing, on the other, to take time to guard myself against an equally strong feeling of abhorrence of dictators. But, on one principle, I cannot agree to consider this bill as a proper subject of investigation, for one moment. I perceive, on further examination of the bill, that the Senate have provided for its suspension in cases where persons have been already presented. Had it been confined to future arrests, I might have agreed to deliberate on it, but viewing it in the light of an ex post facto law, I must give it my instantaneous negative. There is another principle which appears to me highly objectionable. It authorizes the arrest of persons, not merely by the President, or other high officers, but by any person acting under him. I imagine this to be wholly without precedent. If treason was marching to force us from our seats, I would not agree to do this. I would not agree thus to destroy the fundamental principles of the constitution, or to commit such an act, either of despotism or pusillanimity. Under this view of the subject, I am disposed to reject the bill, as containing a proposition on which I cannot deliberate.
The yeas and nays were then taken on the question, “Shall the bill be rejected?”—yeas 113, nays 19, as follows:
Yeas.—Willis Alston, jr., Isaac Anderson, David Bard, Joseph Barker, Burwell Bassett, George M. Bedinger, Silas Betton, William W. Bibb, Phanuel Bishop, John Blake, jr., Thomas Blount, James M. Broom, Robert Brown, John Boyle, William A. Burwell, William Butler, George W. Campbell, John Campbell, Martin Chittenden, John Claiborne, Joseph Clay, Matthew Clay, George Clinton, jr., Frederick Conrad, Orchard Cook, Leonard Covington, Samuel W. Dana, Ezra Darby, John Davenport, jr., John Dawson, Theodore Dwight, Peter Early, James Elliot, Caleb Ellis, Ebenezer Elmer, William Ely, John W. Eppes, William Findlay, James Fisk, John Fowler, James M. Garnett, Charles Goldsborough, Peterson Goodwyn, Edwin Gray, Andrew Gregg, Silas Halsey, John Hamilton, Seth Hastings, James Holland, David Holmes, David Hough, John G. Jackson, Walter Jones, James Kelly, Thomas Kenan, John Lambert, Joseph Lewis, jr., Henry W. Livingston, Edward Lloyd, Matthew Lyon, Duncan McFarland, Patrick Magruder, Robert Marion, William McCreery, David Meriwether, Nicholas R. Moore, Thomas Moore, Jeremiah Morrow, John Morrow, Jonathan O. Mosely, Jeremiah Nelson, Roger Nelson, Thomas Newton, jr., Timothy Pitkin, jr., John Porter, John Pugh, Josiah Quincy, John Randolph, Thomas M. Randolph, John Rea of Pennsylvania, John Rhea of Tennessee, John Russell, Peter Sailly, Thomas Sammons, Martin G. Schuneman, Ebenezer Seaver, James Sloan, Dennis Smelt, John Smilie, John Smith, Samuel Smith, Richard Stanford, Joseph Stanton, William Stedman, Lewis B. Sturges, Samuel Taggart, Benjamin Tallmadge, Samuel Tenney, Philip R. Thompson, Thomas W. Thompson, Uri Tracy, Abram Trigg, Philip Van Cortlandt, Killian K. Van Rensselaer, Peleg Wadsworth, John Whitehill, Robert Whitehill, David R. Williams, Marmaduke Williams, Alexander Wilson, Joseph Winston, Richard Wynn, and Thomas Wynns.
Nays.—Evan Alexander, John Archer, Barnabas Bidwell, John Chandler, Richard Cutts, Elias Earle, Isaiah L. Green, William Helms, Josiah Masters, Gurdon S. Mumford, Gideon Olin, Thos. Sanford, Henry Southard, David Thomas, Joseph B. Varnum, Daniel C. Verplanck, Matthew Walton, Eliphalet Wickes, and Nathan Williams.