Mr. Alston said this proposition is brought forward in a most imposing shape, and it is undoubtedly one to which no one would object, if brought forward at a proper time, if there were not questions depending on which it is calculated to operate, and if there existed the least probability of any thing final being done upon it, before the close of the session. The inquiry is proposed to be made by a select committee; the mover of the resolution will of course, according to the mode of proceeding in the House, be chairman of that committee, and the report will in all probability be made at too late a period of the session, to admit of a full discussion, and an effect be produced by the report very different from that which would result from a full investigation of it. May not its effect be, to cover a decision which the gentleman knows is about to be made? To make it appear that those who make that decision have the voice of the people with them? The first course proposed, of submitting this proposition to a Committee of the Whole, had a tendency to produce an immediate investigation of the subject; an agreement to the present course will have the contrary effect, of delaying it. This proposition really presents a strange appearance. Gentlemen, heretofore the vehement advocates of energetic measures, are now converted into their opponents. This, however, is not strange to an accurate observer of human nature; opposition is opposition still, and let it come from what quarter it may, the general clamor is a regard to the liberty and rights of the citizen. But surely this of all species of protection is the strangest! The protection of men engaged in violating the rights, the liberties, and constitution of their country! Any judge, says the gentleman, who shall dare to refuse to grant the writ of habeas corpus, or officer who shall refuse to obey it, shall be mulcted in heavy damages. What does this amount to? If any person shall even see treason committed before his face, or Aaron Burr marching at the head of the marine corps, he shall not dare to arrest them; but shall, in the first instance, go before a judge, or render himself liable to be mulcted in heavy damages.
Mr. J. Randolph.—Where are we? Are we in the Congress of the United States? Is this the House of Representatives of this Union, and are we to hear on this floor the doctrine advocated that a flagrant violation of the constitution is to be remedied by an action of damages as in a common assault and battery? Is it possible that such can be the idea of this House; such our respect for the constitution, for the institutions we are all sworn to support, and which, if we do not support, whether our treason be committed under the banners of Aaron Burr, or under the cover of law, we are equally traitors? Is this House ready to sanction the doctrine that an open and avowed contempt of the civil by the military authority, shall be considered as nothing more than a common violation of law? A refusal to respect the writ of habeas corpus by a civil officer, is a high misdemeanor. Much more is it a misdemeanor, when committed by a military man, and more especially if committed by the commander-in-chief of an army. With regard to plots and plotters, conspiracies and conspirators, I am not their friend. If they exist, I would deal with them according to law, I would give them sheer law; they should have no more at my hands. Do gentlemen, however, pretend to say that you can proceed against a man otherwise than according to law? I stand here as the advocate of the law. Laying aside the question of guilt, I say proceed according to law. If you do not do this, you may first incarcerate a man, and afterwards summon a venire to try whether the act is justifiable. It is said dead men tell no tales. I will put a case. I will suppose Aaron Burr a conspirator against the United States; a traitor. Let him die. If so, I would hear the sentence pronounced with pleasure.
But suppose another thing—suppose a conspiracy has been going on for several years; suppose a person has been for several years concerned in it, and to cover himself from suspicion he outherods Herod, and because his weak nerves cannot endure the sight of a traitor stabs him. Is this to be justified? It is well known that a conspiracy to separate Kentucky from the Union is no new thing, and no zeal which any man concerned in it may now manifest can throw off suspicion from his shoulders. These are the plain facts.[49]
I will put another case. If a man charged with a crime committed in a territory can be carried to a territory two thousand miles distant by a military guard and there tried, what is the situation, Mr. Speaker, in which you stand? You yourself may be arrested; for you are in a territory, and the little remnant of the army here may be charged to carry you to New Orleans. Your privilege will not extend to felony or to a breach of the peace.
I will put another case. A member of this House may be carried to the marine barracks. You may issue your writ, and your Sergeant-at-Arms make return that the member is carried to Orleans; and as accidents will happen, he may be knocked over by the boom, and there is an end of him. Will you sit down contented with such a doctrine, that the civil authority shall be put at defiance by the military, and the citizen shipped off to New Orleans, there to be tried by a dependent tribunal?
I avoid saying any thing as to plots. I have no doubt, however, of this plot, and I have no doubt of the existence of a plot also in 1788, and down to the year 1795. But in what way has every free people become slaves? The common recipe is—take a quantum sufficit of plots and of military force, always kept ready for the purpose, and the end is accomplished; and I say this must, if you give sanction to such acts, be the death of your Government. Has any revolution taken place in the affairs of France, which was not preceded by a plot? Are we sure that time and chance, which happen to all men and all nations, may not happen to us?
One word on the subject of the quarter from which this motion comes.
An attempt is made to sound the tocsin, and to discipline the House under the banners of party, on a constitutional question. Where the violation of the constitution is not pretended to be denied, it is expected that the House is to be rallied under the banners of party. The gentleman who brings forward this proposition is charged with the sentiments he entertained some years since; but it is the misfortune of this argument that it cuts two ways; if you resort to the sedition law, the alien law, and other acts of those days, you have no right to refuse gentlemen now the benefit of their principles. The people of this country, after two or three juggles of this kind, will be apt to conclude that federalism or republicanism depends on being in or out of the Government; that those who are in are good federalists, and those out republicans; they will find this out, if they do not suspect it already. A few such instances, and the scales will fall from their eyes. You quote the most detestable instances of a violation of a law which have taken place in time past—no, this is the most detestable of all—and yet you gravely tell the people that you will not listen to men who advocate rights thus infracted. The people of the United States will eventually listen to them, if you pursue this course; and it is because I do not wish them to listen to them, that I do not wish to see them foremost in such a cause as this. It is a disgrace to the old republican party, if indeed it is yet in existence, that the writ of habeas corpus should find its first defenders in that quarter. There is on this subject one melancholy fact, and that is—that in 1797 the federalists were in a majority; in 1807 the republicans are in a majority—has the generation of 1798 passed away? No; the same people that were in 1798 federalists are in 1807 republicans, and that is the clue to the thing; all those who swim with the tide come over to the stronger side.
In my mind it is high time to make a provision for a complete casus omissus of power delegated by the constitution. You have found members this session voting to make a violation of a provision of the slave bill death, on the broad principle of natural right; and yet would you do less for a violation of the liberty of your citizens, when you are bound to protect them, not only by natural right but by conventional institutions and your oath? If a military man should take, I will not say a member of this House—but any one of the miserable citizens who inhabit this place—and escort him under military guard to New Orleans—I say the military man who would do such a thing ought to be precipitated from the top of the Capitol. I would teach the military that they are to be subordinate to the civil power, and that if they undertake to violate the civil institutions of their country, they should pay the penalty of their lives. If you do not guard the people from such an excess of military power, the time will come when you will be kicked out of doors at the point of the bayonet. We have seen the Legislature of a nation as enlightened as ours, treated in this way. There is one institution on which I fear we have placed too great a reliance. I have been always attached to the press, and desired to see it free and unfettered; and I have gone uniformly with those who supported this opinion, even in the time of alien and sedition bills, and not merely in a period of sunshine. Experience has proved to us that the press in the hands of a tyrant may become one of the firmest supports of his authority; and if there shall be a collision between the press and the bayonet, it needs no prophetic spirit to say which will kick the beam.
Mr. M. Williams said he would state one or two reasons why he should vote for committing the resolution. As he understood the subject, the only consideration at present was, whether it was necessary to make an inquiry into the expediency of amending the laws on this subject. It had been endeavored to make this a party question; he considered it of no importance from what quarter a proposition came. If he thought it right, he should vote for it. The gentleman from Tennessee has observed that the constitution has made an ample provision on this subject. It appeared to him that the constitution had only secured the writ of habeas corpus; no penalty had been attached to its violation, and hence the necessity of some legislative provision to answer this purpose. The same gentleman has observed, that there is no necessity for legislative provision, as the statute book is already crowded with cases; but, Mr. W. said, he believed there was no legislative provision for the violation of the writ under the authority of the United States. It had been also said, that a provision under the Government of the United States would abridge the rights of the States; but, Mr. W. said, he could not see how this remark applied. He did not wish for any abridgment of those rights. The States undoubtedly had a right to pass laws relative to the execution of the writ within their jurisdiction, and Congress had a concurrent power to regulate it under the jurisdiction of the United States. Mr. W. said, in his mind many arguments had been urged which were irrelevant; such as the conduct of the commandant at New Orleans, and of the persons brought before the court. It had been said that this was an improper time to bring the case before the Legislature; but, gentlemen would find that new cases had very frequently given rise to new laws; and the present case clearly showed the necessity of some new provisions. Whether the persons implicated in this conspiracy had committed treason or not, was not the inquiry; the only question was, whether any further legislative provision was necessary to secure the writ of habeas corpus. He would ask, whether in this instance the constitution had not been violated by the interposition of the military authority? Whether the persons arrested were guilty or not, was not for the House to say. Mr. W. said he did not think that the reference of this resolution would have any influence on the court; as an injury by the House would impose censure neither one way nor the other.