The writ of habeas corpus was issued by some of the State courts, directing the officer in command at the fort to bring some one or other of the prisoners into court for an investigation of the cause and authority for his detention. But no attention was given to these writs by the officer. Neither did the Governor of the State make any effort to enforce the processes of the courts. He, perhaps, expected that his efforts might be resisted by an overpowering force. But expectations, of whatsoever nature, do not justify or excuse the neglect of a positive duty. It is through such weaknesses that the liberties of mankind have been too often lost.
Thus the Constitution, the laws, the courts, the Executive of the State of New York, were subverted, turned aside from the end for which they were instituted, and all the specific arrangements were of no avail to secure this guaranteed right of its citizens. Probably every one of the prisoners was entirely innocent of any act whatever that was criminal under the laws, either of the State or of the United States.
In opinion they were opposed to the military proceedings of the Government of the United States; and these opinions they had expressed, which liberty is a part of the birthright of freemen. Indeed, Judge Nelson, of the Supreme Court of the United States, in the Circuit of New York, in an opinion delivered about this time, thus expressed himself:
"Words, oral, written, or printed, however treasonable, seditious, or criminal of themselves, do not constitute an overt act of treason within the definition of the crime. When spoken, written, or printed, in relation to an act or acts which, if committed with a treasonable design, might constitute such overt act, they are admissible as evidence, tending to characterize it and show the intent with which the act was committed."
Finally, the prison in New York Harbor became so full that many prisoners were sent to Fort Warren in the harbor of Boston. At this time the Government of the United States used the Old Capitol at Washington, Fort McHenry of Baltimore, Fort Lafayette at New York, and Fort Warren at Boston, for the confinement of those whom the usurper designated as "state prisoners." Still further to relieve the fullness of the prisons, two men, John A. Dix, of the army, and Edwards Pierrepont, of civil life, were sent to investigate the cases of the prisoners, and release some who were willing to take an "oath of allegiance." Next it was made a condition precedent to an investigation that the said oath should be taken by the prisoner. As an instance, this proposal was made to two persons named Flanders, citizens of the interior of New York. The oath was as follows:
"I do solemnly swear that I will support, protect, and defend the Constitution and Government of the United States against all enemies, whether domestic or foreign, and that I will bear true faith, allegiance, and loyalty to the same, any ordinance, resolution, or law of any State Convention, or Legislature, to the contrary notwithstanding; and, farther, that I do this with a full determination, pledge, and purpose, without any mental reservation or evasion whatsoever; and, further, that I will well and faithfully perform all the duties which may be required of me by law."
These persons declined to take the prescribed oath. The reasons which they gave for this refusal furnish painful evidence of the extreme subjugation of the government of the State of New York, and its silent submission to the arbitrary and unconstitutional acts of the Government of the United States, even at the sacrifice of the most sacred rights of freemen. They said:
"We have been guilty of no offense against the laws of our country, but have simply exercised our constitutional rights as free citizens in the open and manly expression of our opinions upon public affairs. We have been placed here without legal charges, or, indeed, any charges whatsoever being made against us, and upon no legal process, but upon an arbitrary and illegal order of the Hon. William H. Seward, Secretary of State of the United States. Every moment of our detention here is a denial of our most sacred rights. We are entitled to and hereby demand an unconditional discharge; and, while we could cheerfully take the oath prescribed by the Constitution of the United States, because we are, always have been, and ever intend to be loyal to that instrument (though at the same time protesting against the right of the Government to impose even such oath upon us as the condition of our discharge), we can not consent to take the oath now required of us, because we hold no office of any kind under the Government of the United States, and it is an oath unknown to and unauthorized by the Constitution, and commits us to the support of the Government though it may be acting in direct conflict with the Constitution, and deprives us of the right of freely discussing, and by peaceful and constitutional methods opposing its measures—a right which is sacred to freedom, and which no American citizen should voluntarily surrender. That such is the interpretation put upon this oath by the Government, and such its intended effect is plainly demonstrated by the fact that it is dictated to this as a condition of our release from an imprisonment inflicted upon us for do other cause than that we have exercised the above-specified constitutional rights."
One important fact which illustrates the flagrant outrage committed on all these prisoners should not be omitted. The Constitution of the United States declares as follows:
"In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense."