Tuesday, February 17.
The Writ of Habeas Corpus.
The House proceeded to consider the motion of Mr. Broom, of the seventh instant, and the same being read in the words following, to wit:
“Resolved, That it is expedient to make further provision, by law, for securing the privilege of the writ of habeas corpus, to persons in custody, under, or by color of, the authority of the United States.”[48]
Mr. Broom addressed the House as follows:
Mr. Speaker: It will be recollected by the House that I had the honor of submitting a resolution to make further provision by law for securing the privilege of the writ of habeas corpus to persons in custody, under or by color of the authority of the United States. It was then my wish that it should lie upon the table, in order that members might have an opportunity of considering the subject; being fully persuaded that the more it was considered the more evident would the importance of it appear. As it now becomes my duty to call the attention of the House to the subject, I shall move that the resolution be referred to a Committee of the whole House, and I should not offer a single observation in support of this motion, but for the doubts which have been suggested by several members, of the necessity and propriety of legislative interposition at this time. I trust therefore that I shall be indulged in pointing out the necessity and importance of the provision which it is contemplated to make. I am sensible that this subject is not familiar to the majority of this House; for, until now, no circumstance has occurred in this country which could make us duly appreciate the value of the privilege of the writ of habeas corpus. In ordinary times, the laws which already exist may be sufficient, for in such times there is no temptation to transgress the limits of constitutional or legal privileges; but in times of turbulence and commotion, the mere formal recognition of rights will afford too feeble a barrier against the inflamed passions of men in power, whether excited by an intemperate zeal for the supposed welfare of the country, or by the detestable motives of party rancor or individual oppression. I could have wished that circumstances had never occurred which would make it necessary to fortify, by penal laws, the constitutional privilege of habeas corpus, and that the whole nation, from the first to the least, had regarded it with such religious veneration, that no officer, either military or civil, would have dared to violate it. But recent circumstances have proved that such a wish would have been in vain, and have demonstrated, more powerfully than any abstract reasoning, the necessity and importance of further legislative provision.
This privilege of the writ of habeas corpus has been deemed so important that, by the ninth section of the first article of the constitution, it is declared that it shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it. Such is the value of this privilege, that even the highest legislative body of the Union—the legitimate Representatives of the nation—are not entrusted with the guardianship of it, or suffered to lay their hands upon it, unless when, in cases of extreme danger, the public safety shall make it necessary.
The suspension of this privilege upon slight pretences, it was easily foreseen would destroy its efficacy, and if it depended on the mere will of Congress, it would become, in the hands of the majority, the most certain and convenient means to accomplish the purposes of party persecution, or to gratify political or personal rancor or animosity. This constitutional provision was only intended as a check upon the power of Congress in abridging the privilege; but was never intended to prevent them from intrenching it around with sound and wholesome laws; on the contrary, it was expected that Congress were prohibited from impairing, at their pleasure, this privilege; that they would regard it as of high importance, and by coercive laws insure its operation. By the fourteenth section of the judiciary law, vol. 1, L. U. S., page 58, power is given to certain courts and judges, to grant the writ of habeas corpus; and this is all the provision made by any act of Congress to secure this privilege. Thus the constitution sanctions the writ, and the act of Congress gives the judges power to grant it; but there is no law of the United States which compels the judge to grant it, or the officer to obey it; and the only remedy left to the individual is that which he derives from the common law of England, (if, indeed, gentlemen will allow to that law any operation in the United States courts;) and that very law upon which we now rely to enforce the privilege was found, during the reign of Charles II., utterly insufficient, and has ever since the thirty-first year of that reign, been considered in England as only auxiliary in securing the privilege of the writ of habeas corpus.
As the House has now agreed to consider the motion, I will proceed in support of it. The statute 31, chapter 2, was designed to remedy, and did effectually remedy, the defects of the common law provision on this subject. By that statute severe penalties were imposed on judges refusing to grant the writ of habeas corpus, and on all parties refusing to obey it. In most of the States, laws have been made upon the principle of the statute of Charles, and so far as they extend, are found to have the most beneficial effect in securing the privilege of the writ, but they do not extend to inflicting penalties on judges of the courts or officers of the United States. If the privilege of the writ of habeas corpus be important, and the laws be defective, it is surely our duty to apply the remedy. Of its importance, it is true we have had but little experience in our own country. In England, from whence we derive our knowledge of it, they have proved its value; they have tried it, and it has not been found wanting. In England, this inestimable privilege has been for ages the proud theme of exultation; there they worshipped it as a talismanic wand which could unbar the gates of the strongest prison and dissolve in an instant the fetters of the captive. It was to Englishmen as a wall of fire by night, shielding them from the arbitrary sway of tyrannic power. It is, indeed, the great palladium of that English civil liberty which has exalted the English character. Of the power and influence of civil liberty upon the happiness of the people of England we need no stronger evidence than the situation of surrounding nations, where it was unknown. Let us go back to less civilized times, and we shall see in those nations men in the most abject state of society, suffering oppression in every possible shape; there, every private castle was a secret and inviolable prison; there the life and liberty of the most illustrious, as well as the meanest, subject, were alike the sport of the caprice of a tyrant. Even the petty lordling held as it were the shears of fate, and cut at pleasure the thread of the life of his vassals. A lettre de cachet could confine the unhappy victim of power for life in the loathsome walls of a dungeon, and in spite of the ties of affection or blood, friends must forget each other, or share a common fate. The savage tortures of the inquisition chilled the soul with horror, and the gloomy recess of the sanctuaries of religion too often bore witness to the diabolical temper of man when inflamed with passion and unrestrained by wholesome laws. Such was the condition of other countries while the people of England were reposing in security under the protection of their civil institutions; institutions which had received the sanction of ages, and were guarded by the religious veneration of the people. The right to personal liberty, unless for the commission of an offence against law; the right to know the accusation against them, and the right to be tried by their peers, were all recognized by their charters, and which their monarchs had sworn inviolably to observe. These rights were not merely secured by parchment; they were incorporated with the habits, manners, and customs of the people; they were handed down from father to son in trust for posterity, and guarded as a precious inheritance, which could never be diminished with honor. The people were early taught to know them, and to consider it a sacred duty to draw their swords in defence of them. These fundamental rights of Englishmen have existed from their earliest ages; they were collected in a body by Edgar the Saxon; they were revised by Edward the Confessor, and were ratified by William the Conqueror; they were recognized by Magna Charta, and after the wars between Henry III. and his subjects, were confirmed by the statute of Marlborough, and never afterwards questioned. Rights thus maintained through all the convulsions of England; rights thus endeared to the nation, and engraven on the hearts of the people, and which have walked hand in hand with them through the darkest periods of their history, require no other proofs of their importance.
It has been too generally our misfortune to wait until offences have been committed, before we have provided a punishment; but, when such offences have been committed, the public attention has been awakened, and laws have been passed to guard against them in future. The violations of our constitutional privileges at New Orleans, have shown clearly the insufficiency of existing laws and the imperious necessity of providing the remedy. If we will not be roused from our slumbers by the experience which we have had, I shall despair that we will ever be awakened to any sensibility of our personal rights—for, let it be remembered that these abuses are not of an ordinary character—they have been committed by a military officer at the head of the army of the United States, and in full view of the highest authorities of the Union. The civil authority at New Orleans has been trampled under foot, and the commander of the army, in the plenitude of his power, avows his disobedience to laws and constitution, and takes on himself all the responsibility of the violation of our constitutional rights of personal liberty. Lost in amazement at this bold and unprecedented stretch of power, we can scarcely be sensible of its extent, unless we contrast it deliberately with the constitution. The constitution declares that no warrant shall issue but upon probable cause, supported by oath or affirmation; that no citizen shall be deprived of his liberty without due process of law; and that the accused shall enjoy the right of a speedy trial by a jury of the district where the offence was committed. Yet, in defiance of all these constitutional provisions, our citizens have been arrested without any warrant, and without any process of law whatever; deprived of their liberty; confined in military prisons, and transported under military guards, two thousand miles from the place where the offence was committed. The constitutional privilege of the writ of habeas corpus, which is to secure these rights to the citizen, has been treated with contempt, and a military officer vauntingly takes upon himself all the responsibility of wilful disobedience to the writ. For all these violations we are to be told that the conspiracy which existed in that country will afford a sufficient justification. With respect to the conspiracy, whatever might have been its contemplated extent we have reason to believe that it is now at an end. And, without determining whether the aspect which it had at New Orleans was really alarming to the General, or whether any circumstances do exist which may palliate his conduct, this much we all know, that his power was employed in the arbitrary violation of the rights of the citizen, and that the conspiracy is to furnish the justification. Such conduct, and even such a justification, I look upon with abhorrence and dread. For, if, upon every alarm of conspiracy, our rights of personal liberty are to be entrusted to the keeping of a military commander, we may prepare to take our leave of them for ever. For my own part, I wish to live under a government of laws, and not of men; for, however pure and upright be the intentions of our military commanders, however virtuous, and even unsuspected be their conduct, I can never agree that my right to personal liberty shall depend on their forbearance and discretion. I know not whether these men that have been arrested are innocent or guilty of the treason with which they are charged, but, whether innocent or guilty, they must be arrested and tried according to law. However atrocious the crime which has been committed, the punishment must be according to law. For, in transgressing the limits of the law to revenge upon a criminal the wrongs of society, we are guilty of injustice both to society and the criminal. The manner and circumstances attending these arrests, have been of the most uncommon kind. It is said that all intercourse between one of the prisoners and his family and friends, was cut off, and that not a soul, except military men, was suffered to approach him; that, after being detained under close military confinement for nearly two weeks, he was transported, by the way of Baltimore to this city, and that, upon his arrival here, he was informed that there was no evidence to support any charge against him whatever. But whether this man, or the others who have been arrested, are guilty or not, it can have no influence upon our deliberations at this time. For, if even these violations now affect only the guilty, they may, at the discretion of the military officer, be extended to the innocent. It is enough for us to know that the rights of personal liberty, guarantied by the constitution, have been openly violated in the person of a citizen of the United States, and that no laws exist sufficiently effectual to prevent or punish such violations. It then becomes our duty as faithful guardians of the public rights, to interpose our authority in order to preserve them. But, if we content ourselves with tamely looking on, while our best rights are trampled upon, we become partakers of the guilt by the encouragement which we give the offenders. For these violations, what remedy has the most innocent individual against the officer who arrested and transported him? As the laws of the United States have provided none, his remedy is at common law. He must sue for false imprisonment, and it depends entirely on the jury to say whether they will give him any thing or nothing. Can a remedy so uncertain prevent the offence? or, will a remedy so precarious, always remunerate the injured? But, if to this we add exemplary penalties, we have, surely, an additional security that the laws will be obeyed. The laws are not, and in my opinion will not be sufficient, unless they punish in the most prompt and exemplary manner all judges who refuse to grant the writ of habeas corpus, and all officers who refuse to obey it. For such offences, ruin ought to stare a man in the face; and, when he has so seriously abused his power, he ought to be stripped of it forever. But, if we have no laws to guard us against these abuses, and are unwilling to make any, we take upon ourselves all the responsibility of future violations.
Mr. Burwell said he had determined to vote for the reference of the resolution, that the mover might suggest any additional security to the personal liberty of the citizen he thought necessary, although he did not believe a change in the law material, or that one essential provision had been omitted. Had the gentleman from Delaware confined his remarks to the subject of his motion, and avoided observations unconnected with his ostensible object, he should have acquiesced silently. The Constitution of the United States recognizes the writ of habeas corpus, without determining in what manner it shall be enforced in the courts. That can only be ascertained by recurring to the acts of Congress in 1789, establishing a judicial system, organizing courts, and fixing their powers. The fourteenth section of that law relates to this writ, and says: “This and all other writs not specially provided for by statute shall be issued agreeable to the principles and usage of law.” Mr. B. contended the principles here alluded to could only be those of the English law, and the usages those of their courts; otherwise there could not be found in the constitution, or laws of the Union, a single sentence relative to the subject, and the decisions heretofore had in our courts would be consequently illegal. He said he was fully justified in this position by the uniform proceedings in the courts, and particularly those which had recently taken place in this district before the court acting expressly under the laws of Congress. To show how ample the provisions were, he referred to Blackstone’s Commentaries, vol. 3, page 137, statute Charles 2d, “Any prisoner may move for and obtain his writ of habeas corpus, &c., and the Lord Chancellor or judges denying the same on sight of the warrant or oath, that the same is refused, shall forfeit to the party grieved, the sum,” &c. The judge is here compelled, under heavy penalties, to afford relief to all persons who apply for the writ, and we shall presently see the law guard against delay or evasion by further limitations on the discretion of the judges. Mr. B. said he admitted the specific penalties of the statute did not attach to the judges and courts of this country; but it established their duties, and the punishment inflicted is regulated by the Constitution and law of the United States applicable to judicial offences and misdemeanors. The same statute provides, “that officers and keepers neglecting to make due returns, or not delivering to the prisoner or his agent a copy of the warrant of commitment within six hours, or shifting the custody of the prisoner without sufficient authority, shall forfeit,” &c. In addition to this, the court could enforce its process by attachment, fine and imprisonment, and call on the Executive for aid, if resistance is made. Mr. B. said this statute was considered as having completely guarded against oppression, and was expressly intended to put an end to the evasion of the judges: “The oppression of an obscure individual gave birth to the famous habeas corpus act, 31st Charles 2d, which is frequently considered as another magna charta of the kingdom, and by consequence and analogy has also in subsequent times reduced the general method of proceeding on these writs, and (though not within the reach of that statute by issuing merely at common law) to the true standard of law and liberty.” Black. Com. 136. What more is requisite? Your courts are compelled to issue process and grant relief; your officers to carry it into effect, and your citizens to obey. Mr. B. observed, it appeared to him impossible to devise additional provisions, when those already incorporated into the jurisprudence of the country by the act of Congress, and exercised by the courts, embrace every case arising under the laws, and extend to all persons confined under the authority or color of authority of the United States. He, however, was not a professional man, and was therefore the more disposed in favor of the commitment, lest he should be mistaken in his impressions. If the gentleman from Delaware should discover any salutary alterations, he should not only receive his vote but his thanks.
The gentleman from Delaware says, the late arrests at New Orleans by the military are early warnings of the danger of standing armies. Mr. B. accepted the hint, and hoped the gentleman would himself recollect and profit by it. Those who acted with him had long been partial to those establishments, and blind to their tendency. The events alluded to proved the indispensable necessity of preserving them subordinate to the civil authority. This proved the importance of reducing the standing army to the lowest point compatible with the safety of the frontiers. This was the reason which induced him during the present session to vote against the proposed augmentation of our forces; and while he continued to entertain his present opinions, and felt his present jealousies of a conflict between the civil and military power, he was determined to avoid the issue by keeping the latter in complete subordination. If an opposite policy should ever become ascendant in this country, the measures at New Orleans, instead of being temporary, will be entailed upon us. Mr. B. said he thought it improper to mention the events which had occurred at New Orleans. It was extremely probable prosecutions would be commenced against the officer, and any expressions of disapprobation in that House would give a tone to public opinion which justice required should as yet be suspended. Every person admitted the Commander-in-chief had violated the law. He admitted it himself, and assigned reasons of justification which we ought not to decide, but leave to the courts of justice. They are the proper tribunals to punish those who infringe the rights of the citizen; and until they are closed by power, or their decrees set at defiance, and the Executive unable to enforce them, legislative interference cannot be necessary. It has been said, every officer who refuses to obey the writ of habeas corpus from a court should be punished with death; and this has been proposed as an effectual provision to secure the benefit of this writ. Has the gentleman so soon forgotten the doctrine advanced on that side of the House, and assented to during the present session, when we were told a military officer knew no law but the orders of his superior; when we were told the contrary was monstrous, absurd, and subversive of all subordination in the army; that they were not lawyers versed in your laws and constitution? Mr. B. hoped he had. But the gentleman from Delaware had run into exactly the opposite extreme, by placing the highest and lowest officer upon the same footing, exacting from both the same knowledge of the law, attaching the same responsibility, and, contrary to every principle of justice and humanity, punishing with the same severity the man who intentionally and knowingly violates the law, and the man who ignorantly commits a breach of duty. It would completely reverse what has been so long and wisely recognized in our criminal jurisprudence. The redress allowed to a man who has been forcibly seized and imprisoned without legal authority under the existing laws, is much more conformable to equity than this mode. It is an offence against an individual’s rights, and should be punished, like all other injuries of a personal nature, by action and recovery of damages, in which the jury will always have a just regard to the rank of the offender, the innocence of the victim, and the wantonness of the violence. They will discriminate between the lawless exercise of power by the Commander-in-chief and the subaltern, who executes what he supposes he is bound by his oath to perform. Mr. B. said the mover of this resolution had expressed more alarm at the situation of this country than was real, or than he supposed was felt by any member of this House. One would imagine that the arrests at Orleans had extended through the whole nation, and that no man was safe from persecution. As far as he had understood, the moment those arrested had reached the United States, they had been turned over to the courts, and every privilege been extended to them. The people of this country can never be in danger while their Representatives remain pure, and are disposed to withhold from the Executive dictatorial powers. Have we not already, during the present session, given the most honorable pledge to our constituents that we are not inattentive to their security, when we rejected the bill to suspend the writ of habeas corpus? Why talk of the lettres de cachet which have issued in France, and of other oppressions in that nation? Our Government is neither actuated by such passions, nor invested with such powers. It is degrading to assimilate the two Governments, and argue from a similarity which does not and cannot exist. The one is composed of responsible agents; the other is despotic, cruel, unrelenting and corrupt.
But we are told that a most daring violation of human right has taken place—that men have been seized in New Orleans and shipped here for trial. Far be it from me to exaggerate or soften these acts. Such as they are, I am willing to trust them to an enlightened community. An officer has undertaken at his own responsibility to seize and send here three persons. Two of them charged on his oath with treason, or misprision of treason, and the third by him believed to be guilty. The first two on their arrival here, were delivered over to the civil authority, and on solemn argument committed on a charge for treason. The other was delivered over to the civil authority also and discharged. No man will say that the conduct of the officer who seized and shipped these persons is legal. He has done an illegal act at the risk of his fortune in damages. Let the law take its course; let the individuals prosecute; let an honest jury put on one side the crime with which they are charged, and on the other, illegal arrest and shipment; let them strike the balance. If they assess damages, and it shall hereafter appear that this was a wanton and unnecessary exercise of power, the officer must suffer. If, on the contrary, it shall appear that the officer had no object in view but the public good, that he did really believe New Orleans about to be attacked by a superior force, and that these prisoners could not be safely kept there, I for one, shall not hesitate to pay the damages assessed against him. Freedom can never be endangered by an act like this, where your laws are suffered to take their natural course without suspension or interruption—where the injured individual can bring before a jury his claim for damages. What more safe, more certain, or adequate remedy can you ask for an injury done to personal freedom, than the verdict of a jury of freemen? What would be the feelings of an honest and independent jury called upon to decide a case like this, where an innocent individual of character had been seized and shipped? The damages would be such as to heal the wounded feelings of the oppressed individual, and to deter in future the commission of such an act. If, on the contrary, strong circumstances of guilt should appear against the individual, the damages would be nothing. The officer must depend on establishing before the community the purity of his motives, and the probable guilt of those on whom he has exercised power in violation of right. If the individuals seized and sent here shall be found to be innocent, I should wish them to recover heavy damages. Under my present impressions, I should certainly, if on their jury, not assess damages. If the charges made against them are well founded, I would as soon give damages against an individual who seized and secured for trial a highway robber. The public officer who knows of the existence of treason; who sees an individual embarked in schemes dishonorable to his country; who believes him aiding an approaching enemy, would deserve to be broke if he did not seize him. On the present occasion the officer has gone further—he has seized and sent them to you. He has violated the personal right of the citizen. If from honest zeal for the public good, he will find a sure protection and shield before an independent and patriotic jury. If the persons are innocent, and have been seized by him to wreak private resentment, or on any motive less pure than the public welfare, his reputation as a soldier is destroyed, and his fortune must be lost in damages. I do not believe, however, that much sympathy will be excited in the public mind, when the people shall understand about what, and about whom, all these clamors have been raised. What is the naked fact? General Wilkinson has seized and sent round to the seat of Government three persons, at a time when he believed New Orleans in danger of being attacked by a superior force. Of these persons, the one is a bankrupt foreigner, charged on oath with being an accomplice of Aaron Burr. The second, a young American, charged also on the oath of your Commander-in-chief, with having disgraced the American character, by condescending to be employed as an agent for corrupting your army; with having actually carried proposals of bribery to your Commander-in-chief. The third, a foreign lawyer, who owes to the liberality of the people of this country his bread. Two of these persons, in good Federal times, might have been transported under the alien law to Botany Bay. But men are now seen in your courts actively denouncing this measure, who voted for and perhaps brought forward the alien law. I mention not this to justify the present proceeding, but to show to the people the spirit in which this resolution has originated. Your Commander-in-chief has been placed in a difficult situation. In daily expectation of an attack by a superior force, and opposed by the whole body of the law in the territory, a man greatly his superior in talents and firmness might have erred. He ought most certainly to have delivered over these persons to the civil authority. Had he done this, however, it is not yet decided where the trial would have been held. The district court of New Orleans has the same jurisdiction with the district court of Kentucky. The Kentucky district court has the ordinary criminal jurisdiction of a district court of the United States, which extends only to offences punishable by fine or whipping, and the whole civil jurisdiction of a circuit court of the United States; so that these persons, if charged with treason against the United States, could not have been tried in New Orleans, and must have been sent here or elsewhere by the civil authority. Thus much for the violation of right which has taken place.
Mr. Bidwell observed, that on a motion to refer this resolution to a Committee of the Whole, he thought it unnecessary to discuss the merits of the subject at large; since the very object of the commitment was to afford a full and fair opportunity for such a discussion, and for any specific proposition which the mover might think proper to submit. He was in favor of the proposed commitment, but on very different grounds from some of those which had been urged. Whether the conduct of the commander of the army in arresting certain persons who attempted to corrupt him and to seduce the army, to join in a conspiracy against their country, was to be condemned or not, was a question not suitable to be acted on at the present time, and under existing circumstances. If the House were the proper tribunal to decide that point, this was not the proper mode of deciding it, nor the proper time for the decision. No one would deny that the commander of an army or of a post might be so circumstanced that it would be his duty to make a seizure of suspected persons, or perhaps do other acts not provided for by any law. In such a case he must act under a high responsibility, and throw himself upon the justice of his country. On this ground General Wilkinson had professed to act. If his professions should be justified by the real state of facts, he would be entitled to a favorable consideration. But at present it was unseasonable for the Legislature to express any opinion or take any measure. He regretted, therefore, that the gentleman from Delaware (Mr. Broom) had resorted to this transaction in support of his motion. On general principles, Mr. B. added, he was willing to go into a Committee of the Whole on the subject. The importance of the privilege of habeas corpus was acknowledged by all. The constitution, by restricting the Legislature from suspending it, except when in cases of invasion or rebellion, the public safety may require a suspension, had recognized it as a writ of right, and our statutes had authorized certain courts and magistrates to grant it. It had been, indeed, in some respects doubtful where the authority to issue such writs was lodged. Whether, for instance, the Supreme Court, a circuit court, or the justices of the Supreme Court, out of their appropriate circuits, had that authority, were questions on which not only professional men, but judges themselves, had differed in opinion. Some improvements, perhaps, might be suggested. Although he lamented that the gentleman from Delaware had moved the subject at the present time, while some of the questions involved in it were under the consideration of the judiciary, and that he had referred, in his argument, to the late transactions at New Orleans, of which we have not sufficient information to form a satisfactory judgment, yet he would consent to refer the resolution to a Committee of the Whole, for the purpose of considering such propositions as that gentleman might offer for the amendment of the law.
Mr. Early.—Mr. Speaker, the motion, timed as it is, and accompanied by the speech we have this day heard from the honorable mover, has a suspicious aspect and influence upon certain judicial procedures, depending at the present moment within the walls of this building. Is this House willing to suffer such manœuvres to take their proposed course, and to produce their wished-for effect? Are they prepared to interpose the weight of their influence to ward off the infliction of punishment upon traitors, by passing sentence of condemnation on acts which have produced their arrest and confinement? But it is not now alone that this pernicious tendency of the resolution is to be felt. Actions for damages are no doubt to be brought against the Commander-in-chief. Whether the damages which may be recovered, ought or ought not to be made good to him by the Government, must depend upon circumstances yet to be developed. That he has violated both law and constitution, is not denied. But whether there existed that imperious necessity for such violation which alone can justify it, and give him a claim upon the Government for the damages to which he may be subjected in consequence thereof, can only be determined upon a full view of all circumstances. Here presents itself another strong objection to the resolution. Its tendency is to procure now that expression of opinion by the National Legislature, in relation to the events at New Orleans, which will, which must, raise a powerful obstacle hereafter, against a remuneration of any damages that may be recovered against the Commander-in-chief. To this I will not consent—against it I hold up my hands, and enter my most solemn protest. There is still a farther objection; the tendency of the resolution, if adopted by the House, will be to influence the amount of damages which may be assessed. Yes, sir, it will be viewed as the expression of an opinion on the part of Congress as to the demerits of the act for which damages are claimed. The effect upon the minds of a jury is even more to be dreaded than that upon the opinion of the judges. Who is there that cannot perceive its force? Who that must not deprecate its effect? If it should be observed that the resolution itself cannot be open to all the objections now urged against it, let it be recollected that the honorable mover has taken special care to give to it a direction, and accompany it by circumstances which must insure to it the operation complained of. In ordinary cases there can most certainly be no objection against an inquiry after defects in any branch of law, with a view to the application of some remedy. But such is not, as I apprehend, the state of the present question. Admit, for argument’s sake, that a defect does exist in the present provisions for securing the habeas corpus privilege, can an adequate remedy be now applied? It cannot, we know it cannot.
But, Mr. Speaker, where is the proof that the provisions now in force are not sufficient for the security of the person? Have you any evidence to this effect? If you have, I am ignorant of it. Are not the courts of justice open? Let the persons injured resort thither. Let their complaints be laid before an American jury. Will not an adequate redress be had there? Are the people of the United States too insensible of the value of the privilege of the habeas corpus to award damages proportionate to the injury sustained by its infraction? Or is it that gentlemen suspect, that the individuals who have been arrested were engaged in a plot so diabolical that a jury would, upon a view of the whole ground, assess damages too inconsiderable to comport with their wishes? Is it for this reason that the American Congress are asked to prejudge the case, and to throw their weight into the scale against an officer who, from every thing that yet appears, has acted from motives of the purest patriotism? The part he had to perform was one of the most arduous ever assigned to the lot of man. Entrusted with the defence of an important and extremely remote point, where all was to be done before instructions could be received from his Government, every measure was to be taken by his own judgment and upon his own responsibility. His chance of information as to the extent of the danger was extremely limited, and, so far as facts have come to light, he had powerful reasons for believing that the conspiracy was deeply laid—that it had diffused itself extensively in the very bosom of the country against which it was directed, and that it would be supported by a military force far more numerous than any he had at command.
Mr. Broom.—Mr. Speaker, I confess that the opposition which this resolution has met with does surprise and astonish me, and more especially when I consider the quarter from which it comes. That those who have been the most clamorous about the rights of the people, who have been jealous in the extreme of even the lawful exercise of power, who have assumed to themselves almost the exclusive privilege of protecting our rights, should now refuse even an inquiry whether those rights cannot be better protected, is to me a problem which I cannot solve, unless I suppose that these were principles and professions intended only for opposition, but never as the guide of administration. But when the principle is avowed that no laws shall be enacted for better securing our personal rights, and that no inquiry even on the subject shall be made at this time lest it might cast a censure on the conduct of an officer who violated them, I consider it my duty to protest against it. Sir, is it come to this, that when the Commander-in-chief of the Army of the United States shall turn his arms against our constitutional rights, that we shall not provide against future violations for fear of exciting a prejudice in the public mind against the officer? Prostrate indeed must be our condition when we can see our great rights of personal liberty trampled upon by a military commander, and be deterred from legislating lest the punishment of future violations should be construed into the murmur of disapprobation of the past! For my own part, I deprecate such a state of things, and, in spite of party, trust that the highest legislative body of a free people will not be found so unfaithful to themselves and their country as to give it their sanction.
The Message of the President, of the 22d of January, informs us that two persons have been seized at New Orleans by General Wilkinson, and embarked for ports in the Atlantic States, and promises that, upon their arrival, they shall be delivered over to the custody of the law. General Wilkinson states that Mr. Bollman, one of the persons so seized, was required by the superior court, but that he got rid of that affair under the usual liability for damages. Another message informs us of their arrival here, and that measures are taken to hold them in custody. These facts warrant me in saying that, in defiance of the Constitution of the United States, persons have been seized by military authority; that they were demanded by the civil authority; that the military refused to deliver them up; and that they were transported under military guard, and by military authority alone, to this city, and that here the first steps were taken to put them into the custody of the law. Is it possible that we can shut our eyes upon these transactions, or reconcile it to ourselves to become the mere passive spectators of this violent usurpation of power? What excuse can any man render to his country for his supineness, in case of the commission of future violations? Can he plead his ignorance of what is officially communicated to him? Or can he say he was not warned of the dangerous consequences of these measures, or of the insufficiency of the laws to prevent them? The whole country know the fact, and deprecate the consequences, and they know also that we have received official information of them, and they look to us, as their Representatives, to use every means in our power to prevent the recurrence of them. Can any man be willing that his right to personal liberty shall depend on the will of an executive or military officer? If he can, he does not deserve to possess the right, and is well represented by those who refuse to protect it.
In speaking of probable cause of arrest, I confined my observations to the case of Mr. Alexander. I have seen no message informing us of the particulars of this case, but it is said that this gentleman, in his professional character, moved the court at New Orleans for a writ of habeas corpus, for one of the persons arrested by military orders; upon the refusal of the General to obey the writ, he either moved, or was about to move the court for an attachment against him, and was soon after arrested by order of the General, and transported to Fort McHenry, at Baltimore; from thence he was brought to this city, and taken before a judge of the Territory of Columbia, where he was informed that there was no charge against him sufficient to warrant his arrest, and he was accordingly discharged.
I now put it to the candor of gentlemen to say whether in this case there was any probable cause of arrest, or whether the same outrage might not be practised upon any other citizen of the United States upon the same principle, by the commander of any fort or garrison; and I will ask, also, whether the General might not as well have sent him to California, or Nootka Sound? For he was not charged with any offence upon which he was liable to arrest. If we have constitutional privileges, we must be always ready to protect them; and if the privileges now violated are not worth protecting, where are we to make the stand? When we see a cancer even in the extremities of the body politic, we must apply the knife, or the caustic, or it will reach the vitals. There ought to be no temporizing; for it will become the more inveterate and confirmed, the longer we delay. Without the most prompt attention to the preservation of our privileges, we may have the form, but we shall not long have the substance of a free Government; and of all Governments I think that the worst, where the sound of liberty supplies the place of the reality, and a thousand petty tyrants take shelter under the cloak of republicanism.
It is said these men could not be tried at New Orleans; it is not material to involve in our discussion this question; for if they could not be tried they might have been imprisoned there, until they were transferred according to law to the place where a trial could be had; but it can never be justifiable in a military officer to seize and deport to any part of the United States, any citizen whom he might suspect of guilt. If it were admitted, an officer might carry a man from place to place until he found judges and juries disposed to convict—the constitution to the contrary notwithstanding. General Wilkinson’s zeal may have been sincere and his motives pure, and the pressure of circumstances such as to make him feel justifiable in his conduct; but, sir, we never can with safety entrust such unlimited discretion to any military officer; and such conduct, however innocent the motives, ought to be guarded against by the most severe laws. The second objection of the gentleman from Massachusetts is, that the laws are already sufficient. They surely have not been effectual to prevent the abuse of the privileges of habeas corpus. The writ was issued at New Orleans, and General Wilkinson in open court took upon himself the responsibility of refusing to obey it. The writ was issued at Charleston, and the officer refused to obey it, and the military continued in possession of their prisoner until they arrived at the place of their destination. The people of England never considered the writ of habeas corpus perfectly secure until it was strengthened by the statute of Charles.
Mr. Jackson had hoped that the gentleman from Delaware would have contented himself with professing his regard for the rights of the citizen, and not troubled the House with the long speech which he had delivered on the occasion. Mr. J. said it gave him alarm to find such sympathy for men guilty of the most atrocious crimes. Treason in some countries may be an act of magnanimity, but here it is the worst of all crimes, because it aims at the destruction of the best Government and the happiest society in the world.
Mr. J. proceeded to observe that if any officer will violate the constitution and take the responsibility, it is in vain to make laws in order to prevent it. But were there no circumstances to justify Wilkinson? He saw treason lurking on every side. There are cases in which necessity affords a complete palliation. The President’s Message does not confirm the declaration of the gentleman from Delaware, that there were no grounds for a charge against Alexander. [Mr. J. here read Wilkinson’s affidavit.] Does it not show that they are all linked together? Wilkinson believed, and no doubt justly, that these persons could not be safely imprisoned at New Orleans. When it appeared that the judges, at least one of them, was desirous not to oppose the treason, it would have been madness in the extreme to have left the traitors there, and especially when it was expected that Burr would soon arrive with a powerful force.
The relief for abuses of the writ of habeas corpus is in trial by jury. This is the best relief. But the violator is also liable to impeachment, and is amenable to the Government. The outrages spoken of have a remedy—the privilege of the writ is amply secured; if the constitution has been broken, a law would also have been broken in the same circumstances. Mr. J. then concluded by announcing his determination to vote against the reference of the resolution.
Several members were rising to speak, when an adjournment was moved and carried—yeas 60.