M97 1 '■:i ::'■ LIBRARY OF CONGRESS DDDD17H7EEfl 3 ' >P ,v ' <^ ♦ '^^^'> al°* j?**^ %.*' '^..*^ s^'^ .«* ''U 7e v •: /x ^^^ - . * R E M A K K S OF HON. HEMY C. MURPHY, OF KINGS COUNTY, * UPON THAT PORTION OP THE MESSAGE OP HIS EXCELLENCY GOVERNOR SEYMOUR, BELATING TO AEBITEAEY AEHESTS, DELIYEEED IN THE SEJ^i^ATE, Marcli 5, 1863. .-. x mOi^^**^ ^' ' ^'ilHtOT VM ALBANY: COMSTOCK & CASSIDY, PRINTERS. 1863. question of what is called arbitrary arrests, within the State of New York ; for it is to that action within oar own State limits that the question is presented to our consideration. There are two branches of the enquiry somewhat involved together but yet essentially distinct — ■ arjrests by State warrant and the denial of the privi- lege of the writ of habeas corpus. It is undoubtedly true that if the writ of habeas corpus cannot be com- plied with so that the cause of detention may be inquired into, the means of arrest become immaterial to the subject of it, and whether legal or illegal, its effect is all the same to him. Still there are two dis- tinct questions, involved in the consideration of the subject and so the Govenor evidently regards them, I purpose to treat them, therefore, separately. There are however, some considerations belonging in com- mon to both of them upon which X will first say a few words. In both cases there is an exercise of power by the President, and the enquiry becomes proper, what is the nature of his authority ? This may briefly be answered by stating what he is and what he is not. He is the mere creature and instrument of the Constitution. The government of the United States itself is a limited organization made by a free people for their own purposes. It is confined in all its powers. Its ditferent departments are limited and restricted to particular duties ; and the executive is as distinctly confined in its authority as the legislative or judicial departments in theirs. Each and all can exert such powers only as the people have thought proper to entrust them with. On the other hand, the President is no crowned head. He takes no preroga- tive by hereditary right or by prescription, or as the advocates of monarchical power claim ex jure divino. He is not the fountain of power. He is only the recipient of it, and of just so much and not a particle more as is expressly conferred upon him. He has no reserved authority. All the powers not expressly given to him or prohibited to the States are reserved to the people and the States. These are cardinal principles in our government, differing in that respect" essentially and fundament- ally from most others. The President has no more power outside of the Constitution than the humblest citizen who treads American soil. When he transcends the authority expressly conferred upon him by that instrument, his authority in that regard is null. It may be disregarded and defied, and should be rebuked. He becomes an usurper, — worse than a dictator; Your dictator had at least the sem- blance of authority. It was expresslyv conferred upon him by the Senate and it was, with some regard 6 to popular rights, limited to six months. But the President who by his mere motion assumes for the period of his term the power to do acts in derogation of life, liberty, and property, has not even the justi- fication of a dictator. It was indeed against the exercise of powder such as claimed by the President in the cases which are the subject of our present consideration' that the colonies rose against the King of England. Among the causes set forth in the Declaration of Indepen- dence, for taking up arms it is enumdrated that the King of Great Britain had " affected to render the military independent of and superior to the civil power," and had combined with others " to abolish the free system of English laws in a neigh- boring province, establishing therein an arbitrary government so as to render it at once an example and fit instrument for introducing the same absolute rule in these colonies." How fearfully parallel are the causes of complaint now urged against the Fede- ral Administration by the people of the loyal States. What is true as to the limitation of the power of the President is also true of the limitation of the powers of Congress. Its enactments, beyond the authority conferred upon it by the Constitution, are utterly null. The Parliament of Great Britain, whence we derive our notions of liberty, declare in connection with the King, what the Constitution of that nation is. Practically they can alter, enlarge, or abridge its unwritten provisions adapting them to the change of circumstances in the country. But our Constitution is written. It is fixed, and can only be changed by the people themselves, in whom all power not delegated is reserved, whatever may be the state or condition of the country. Thus Congress can con- fer no power upon the President which it is not authorized expressly by the Constitution to do. In determining, therefore, the authority of the President we must resort to the fundamental law, to ascertain his powers, whether they are claimed by him from the Constitution directly or to be conferred upon him by act of Congress. No circumstances in the condition of the country, no necessity can confer upon him an iota of authority beyond what is found there. It matters not whether it be a time of peace or war, of prosperity or adversity, of concord or insurrection. That instrument was intended to embrace every condition of the country, and in my opinion, amply provides for all, and against all ; and one of its principal merits is that it is thus intended to step in and protect the people in times of disorder. There is another general consideration to be borne in mind. Our revolution was undertaken, our independence achieved, and our Government formed for the purpose of securing certain inalienable rights which our fathers claimed, and among them were those of property, life, liberty, and the pursuit of happiness, who claimed them as the heritage of Englishmen. They declared them not only sacred but inalienable, and so jealous were they of them that while they expressly reserved to themselves all powers not conferred upon the Government by the Constitution, they required amendments to that* in- strument as originally drawn, expressly guaranteeing the provisions of Magna Charta, and the bill of rights established in the revolution of 1 688. These guaran- tees everyone can read for himself, but briefly stated, they are the right of conscience in religion, freedom of speech and of the press, trial by jury, and arrest and imprisonment only according to the course of the common law. And lest the enumeration of these rights might be interpreted to the prejudice of the great principle that all rights and powers not granted by the Constitution were reserved to the people, it is expressly declared that the naming of these rights in particular shall not be construed to deny or dis- parage others retained by them. Arbitrary power is as carefully provided against as human ingenuity could devise, and we discover that one of the princi- pal objects in view is, to cut up by the roots th6 vile system of arrest and imprisonment by executive 9 authority and to vindicate and perpetuate beyond aU peradventure the rights of man against the pre- tensions of prerogative on the part of Government. With these allusions to the nature and powers of the Government and the natural, inherent and in- alienable rights of the citizen I pass to the considera- tion of the first question proposed. Citizens of this State, where no insurrection or invasion has taken place, who are not in the military service, have been arrested and imprisoned and taken from the State without warrant of any court or magistrate, by the arbitrary order of the President acting through the State or War Departments or other subordinates. It is the exercise of such authority that the Governor condemns, and the people of this State, at the late election, among other acts of the Federal Gov- ernment, rebuked. Now, sir, while the arrest itself is properly an executive act, the order of arrest is a judicial one. These two powers are distinct. They do not, cannot and should not be in the same depart- ment. Combined in one tyranny is the result. The founders of our Government particularly guarded against their being exercised by the President. Thus the Constitution declares that "no Twrants shall issue but upon probable cause, supportefty oath or affir^ mation," that " no one shall be held to answer for a capital or otherwise infamous crime unless on a pre- 10 eentment or indictment of a grand jury," and that " no person shall be deprived of life, liberty .or pro- perty without due process of law." All these provi- sions look- to judicial investigation or judicial action before an arrest can be made. Has the President any right to determine the judicial point of probable cause ? Does the common law permit any warrant to issue except by the magistracy ? If * not, and it seems to be too plain for argument, then where is to be found any judicial authority in the executive ? The Constitution expressly declares that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. This power is thus placed in an independent branch .of the Government and Congress is prevented from conferring it upon any other than tribunals proceeding according to the course of the common law. The Senator from the Nineteenth admits the limit to executive power as regards its civil authority, but finds a warrant for the proceedings of the President in his military authority, and in the demands of the people. In ord|| that I may do him no injustice, I will quote his language as it is printed : " Nobody claims that tlio President can do tlicse things in liis capacity of Chief Magistrate and in time of peace. His powers Rs civil executive are then limited by the restraints imposed 11 upon him, as such, by the express language of the Constitution. But the President is not merely the Chief Magistrate and civil executive of the nation, he is also the Commander-in-Chief of the army and navy — and the same Constitution wliich makes him the one, makes him the other also. The same instrument which* defines and restrains his powers in time of peace a? civil execu- tive, confers vjyon Jdm every military poioer necessary to save the Oovernracnt in time of vku\ as Commander-in-Chief?^ "With almost entire unanimity the people called upon tlie Government to arrest these traitors and prevent their doing- further mischief. In response to this demand, and to stop the spread of treason at a moment of imminent peril, the Govern- ment did order the arrest of a few of the noisiest and •vforst of these men. And yet as it is J must concede that it has its effect, for it appeals to the blindest and lowest passions of luiuianity." In plain terms he justifies the Presid(5nt by the martial law, and the old and much perverted maxim that the voice of the people is the voice of God. Now' the authority of the President whether in his military or civil capacity has one and the same origin — the Constitution ; and the only power con- ferred upon him by that instrument as respects military matters is that which makes him the Com- mander-in-Chief of the army and navy. Congress in the exercise of its granted powers, has given him right- fully the power to make rules and regulations for the government of the military and naval forces of the United States. But these powers areHn terms confined to persons in the military and naval service. In this respect he has the same powers in substance 12 as the King of Great Britain, and certainly no more. When he assumes military authority over citizens who are not in the military or naval service and, for the sake of the argument, I will include persons within any district in actual military occupation where the civil law is suspended of necessity, he transcends the authority conferred upon him and is guilty, in the language of the Governor, of a crime. It is from no desire to shield crime or to punish treason that exception is taken to his course. The laws have provided for such offences and the civil courts of the State are open to punish offenders. To attempt to supersede them by the will of the execu- tive, under any pretence whatever, is to deprive the innocent as well as the guilty of the protection which the laws afford them. False accusations, secretly made and fomented by private malice, reach the ear of the executive and there is no remedy. This will of the executive is called martial law. But martial law cannot exist where the laws are enforcible, especially under our form of Government. It is at best, in the sense in which it is now used — that is, as an emanation of the supreme militaify authority of the President — a law of necessity, only applicable when there is no civil rule. The authori- ties upon this point are incontroyertible. The Gav- ernor cites that of Lord Coke : 13 " More than two centuries since," he Bays, " that bohl defender of English hberty, that honest and independent judge, Lord Coke, declared : " Where courts of law are open, martial law cannot be executed," and also that " the power that is above the law, is unfit for the King to ask or us to grant." Are English laws more sacred, or is English hberty more secure than ours V This is old authority it is true, but it h,as the uniform sanction of the beat writers on the subject since the days of Coke. Without quoting from them in detail, I cannot forbear citing that of Sir James Mackintosh as he is quoted by Sir F. Thesiger in the debate which took place in the House of Com- mons in 1861, upon the administration of the affairs * of Ceylon. That eminent lawyer then said, " he would quote a passage from the writings of one of the most accomplished philosophers, jurists and statesmen this country (England) had ever produced — he alluded to Sir J. Mackintosh. He said : " When law is silenced by the noise of arijis the rulers of the ^ armed force must punish as equitably as they can those crimes '\ wliich thi'eaten theu" own safety and that of society and no longer. / Every moment beyond is usurpation. As soon as the law can ■ act, every other mode of punishing supposed crime is of itself cm ' enormous cri/ne.^^ - This language is almost the same as the Governor adopts in stigmatizing the character of the arrests made in this State. Perhaps it may be objected that this is British authority only, and has no application to our own Constitution. Well, sir, although all our notions of 14 law and liberty are derived from England, and we are therefore justified by the sound rules of argu- ment in using authorities derived from thence, here is one not liable. to exception of any kind" and to the very point and in my judgment conclusive. It u the solemn judgment of the State of New York herself. It is the declaration of our State convention which ratified the Federal Constitution. It is an explicit document. Among other points of the Con- stitution considered by it was the military power, and how the Constitution limited that power. It declares among other things " that standing armies in times of peace are dangerous to lijjerty, and ought not to be kept up except in cases of necessity, and that at all times the military should be under strict subordi- nation to the civil power." At all times in contra- distinction to times of peace. And then in signifying the ratification- by the people of this State they declare such to be their understanding of the Consti- tution in these words : " Under these impressions and declaring that the rights afore- said are consistent with the said Constitution and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early consideration, we, the said deleo"ates, in the name and behalf of the people of the State of New York do by these presents assent to and ratify the said Constitution." This is the language not only of the delegates who had been chosen by the people to express their views, 16 but of sucli men, who were members of the convention, as John Jay, whom Washington selected from among the purest and wisest of that day to be Chief Justice of the United States, as Alexander Hamilton, who was an aid of "Washington in the war, and who, in intellectual vigor, has had few equals and no superior in our State, and as Melancthen Smith, Chancellors Livingston, Lansing, and Jones, Judges Duane and Hobart, Richard Morris, Lewis Morris, and not last or least, George Clinton, then Governor of the State, clarum et venerabile nomen, who was chosen to preside over the deliberations of the convention, and whom you have as the presiding genius of this body. There he stands before you. Senators, in all the dignity of his high official position to stimulate you in the path of duty, and to remind you, in the history of his own life, that resistance to tyranny is obedience to God. These men had been tried in the fires of the revolution ; they understood well, from personal ex- perience, the exigencies of war, and of a war of rebellion. They are an authority which not only are you bound to respect for themselves, but which, as delegates of the people of this State, seals forever your lips and those of every New Yorker, from deny- ing that according to the Consitution the military authority of the Federal Government is subordinate to the civil power in war as well as in peace. 16 My honorable friend, the Senator from the Nine- teenth, says the people were clamorous for these arrests. Sir, I have a great respect for the opinion of the people deliberately expressed, but for popular clamor, none. As a democrat and a republican, in the broad and catholic sense of those terms and not in any partizan sense, I bow to their views when regularly and intelligently expressed, but not as against law and order. In moments of passion and in times of turbulence and faction, it is to me but as the idle wind. Clamor deluged the streets of the fair and gay and festive city of Paris in blood and carnage. It brought the Saviour of mankind to the cross, and bound his holy temples with a crown of thorns. It is said of that eminent divine and good man, though great enthusiast, John Wesley, that in an argument with his sister he claimed for his side this popular cry — Vox populi, vox del. "Yes, brother," said the lady meekly, with the sagacity of her sex which so often penetrates the sophistries and fallacies of our own, "that means. Crucify Him, Crucify Him," and the founder of Methodism was silenced. I have a respect for the decision of the people when expressed in the forms of law such as we witness now every day rolling from the ballot box over the State like the tides of a mighty ocean, in slow and gather- ing volume and in obedience to the unerring laws of 17 nature and truth, to overwhelm, in its resistless flood the violators of the rights. Your laws and constitu- tions are all a protest against popular clamor. They are intended to protect the weak and feeble against the violence of the many. They are efficient and sooner or later will be vindicated and upheld against the strong arm of power. We hold our liberties by no such uncertain tenure as popular demand. There is not authority in the Government of the United States in obedience to any popular clamor or otherwise to take from me or you the most trifling article of property. It cannot deprive the most abject fellow being of one moment of liberty except by due course of law. To attempt to do so is a crime against him, against good order, against the liberty of a free people. And, sir, I speak delib- erately when I say, in my humble judgment, it will be the duty of his Excellency the Governor in the event of a renewal of the attempt to arrest on the soil of this State any of its citizens by what is called a State warrant, to resist it in such a manner as becomes the executive of a free people, firmly and decidedly, but temperately and with a patriotic spirit, and as befits a State which loves and cherishes the Union, and is resolved to defend it. I come now to consider the privilege of the writ of habeas corpus, which the President has undertaken to 1^ suspend not only in the brief period after the break- ing out of the rebellion and preceding the meeting of Congress on tte 4th of July, 18G1, when there were circumstances of justification for his course, but ever since and without justification. The benefit of this writ is an esrfential "and inherent right of the people— it is that of having the legality of imprisonment inquired into summarily and without delay. It is so regarded in the Con- stitution which authorizes its suspension under certain circumstances. That provision reads : " The privilege of the writ of habeas corpus shall not be suspended unless when in case of rebellion or in- vasion the public safety may require it." The Con- stitution no where else refers to this privilege except in the provision before alluded to, which it adopts from Magna Charta. It here speaks of it as a right as much connected with liberty as the air we breathe is with life, as already existing and unquestioned. And so it was. It existed in full force in the colonies from their foundation and in the mother country, from time immemorial. The Supreme Court of the United States so regarded it in the case ex parte Buford, reported in 3 Cranch. But let me cite the observations of that distinguished writer whom I have already mentioned, Sir James Mackintosh, in his Review of the Causes of the Revolution of 1688. 19 "Tho most ancient of our fiindeniental laws had declared the I)rinciple that no freeman could be imprisoned without legal authority. The iramemoriail antiquity of writ of habeas corpus seems to j^rove that this principle was coeval v.ith the law of Euo-land. In irregular times, however, it had been often violated ; and the judges imder Charles I pronoimced a judgment, which if it had not been condemned by the petition of right would liaA'e vested in the crown a legal power of arbitrary imprison- ment. By the statute which abolished the Star Chamber, the Parliament of 1641 made some important jDrovisions to facilitate deliverance from illegal imprisonment. For eleven years Lord Shaftfibury struggled to obtain a law which should complete the securities of personal liberty, and at length that great though not blameless man obtained the object of his labors and bestowed on his country the most perfect security against arbitrary imprisonment which has ever been enjoyed by any society of men. It has banished that most dangerous of all modes of oppression from England. It has efiected tliat great object as quietly as ii-resistibly ; it has never in a single instance been resisted or evaded, and it must be the model of all nations who aim at receiving that personal liberty without which no other liberty can subsist." So much in regard to England. Now in regard to our own country. I have abeady referred to the opinion of the Supreme Court of the United States ; but there is contemporary evidence of some weight. I refer to an incident in the history of the President of the first Continental Congress, Henry Laurens, of South Carolina, who was afterwards sent to Holland to negotiate a loan for Congress, but was captured by a British cruisrer, taken to England and imprisoned there. I hope I do not give offence or cause sus- picion of treason by referring as an authority to a 20 citizen of Bouth. Carolina. The name of Henry Laurens, like that of Washington and some othprs of the rebellious States is " freedom's now and fame's." On his liberation from prison the British minister, Lord Shelburne, said, " "Well, Mr. Laurens, if we must acknowledge your independence, I shall be grieved for your own sakes. You ivill lose the henejit of the habeas corpus dct" The patriot replied, " We have adopted and we can make laws," He proceeds with the subject, in an account which he himself has left us, as follows : " Lord Shelburne was so anxious lest by a separation from ^ Great Britain, the United States should lose the benefit of the habeas corpus act, as to induce liis Lordship to send Sir William Meredith to expostulate with me on the subject ; Sir William came to my bedside. I was lying ill with the gout. After a little general conversation, he presented me a thin- quarto volume, written and published by himself, on the habeas co?-pus act, de- sired I would read it with attention, and he would call again. Sir William called in two days, asked if I had perused the book. " Yes, Sir William, and as far as I am competent to judge, it is very ingenious, but it contains nothing Substantially new to me. I perceive, however, you cannot in England liberate a prisoner with so much facility as we can do in America. I myself with the aid of an attorney-at-law, have set a common foremast sailor who had been illegally imprisoned on a Saturday afternoon at liberty that very Saturday night, by a writ of habeas corpics." We thus see that not only was the value of this privilege well understood, but it was exercised with more facility even in the colonies than in the mother pountry, When therefore the framers of the Consti- 21 tution speak of the writ as a remedy exist^g and its privilege only to be suspended at a particular emer- gency, they speak of it as a right as common law, as their birthright derived from the land of their fathers. It was in fact peculiar to Great Britain and her colo- nies, and therefore by every fair rule of construction any doubt as to its meaning or to provisions affecting it, is to be examined in the light of English practice and authority. The clause in our Constitution authorizing the suspension of the privilege is, it is claimed, not clear as to what department of the Gov- ernment has that power, and that the necessity ♦for its exercise is properly to be judged of by the execu- tive. But granting that the Constitution is not ex- plicit, — though the contrary is the fact, the English constitution will at least aid us to a conclusion. The bill of rights asserts that the power of suspending laws is not in the crown but in Parliament ; and we find accordingly that since 1688 although the privi- lege of the writ has repeatedly been suspended in England, it has never been attempted by the King. An act of Parliament has always been passed for the purpost. When, therefore, the Constitution autho- rizes its suspension here, without saying by what department, it intends by no other Mseans than by law. The Constitution is however explicit. That instrument is not a crude and undigested mass of 22 provisions. It is a perfectly arranged and logical document. It not only distributes the powers of the Government among the different departmehts, but each department is treated of by itself, and we find accordingly that the legislative, judicial and exe(?u- tive branches are disposed of in separate articles. In the article treating of the legislative department occurs this clause in relation to habeas corpus, and in that section of it restricting the powers of Congress. It is evident therefore that the makers of the Con- stitution considered the suspension a legislative power frqm this circumstance ; but above and beyond this it. is a sound rule and in fact the only sound rule, to construe what is written or what is said, in connexion with the subject matter immediately under consider- ation. But we are not left to English analogy or logical deduction to determine this question. The same contemporaneous authority w^hich I have already cited — the ratification of the Constitution by the New York convention, disposes of this point as direct- ly as it does the other. Thus in enumerating the rights of the people to which the constitution con forms, the delegates say : " Every person restrained of liis liberty is entitled to an enquiry into the lawfulness of such restraint and to a removal thereof if unlawful, and that such enqiiiry or removal ought not to be denied oa* delayed except when on account of .public 23 danger the Congress shall suspend the privilege of the writ of habeas coipus.'''' The Constitution as it stands they thus declare to be consistent with the exercise of the pow-er of sus- pension by Congress. It never entered into their heads to suppose that the executive Avould claim the power — the one man power, against which they had been fighting for seven long and dreary years. On the contrary, they thought the power of Congress itself was a little too broad, and accordingly they recommended a restriction that the suspension should not contmue for a longer period than six months. Now observe the language in which this recommen- dation is made : "That the privilege of the habeas corjnts shall not be sus- pended for a longer .term than six months or until twenty days after the meeting of the Congress next following the passing the act for such susj)e?ision.^^ This recommendation assumes as a matter of course that the suspension would necessarily be by act of Congress. It is unnecessary to pursue the argument further. And, in fact, the friends of the President seem at last to have abandoned the case. The news- papers of this day come to us publishing an act of Congress authorizing him to suspend the privilege. As the lawyers say, this is a cognovit — a confession of the usurpation hitherto. 24 But the concession comes too late. The mischief has been done. The confidence of the people when bestowed is generous and indulgent of error com- mitted with good motives and for justifiable ends. Before the meeting of Congress on the 4th of July, 1861, the acts of the President in this regard were overloolied, for Congress could not act, and the people submitted because there was an apparent im- pending necessity. Since that time there has been no justification. Congress did liot choose to act, when it assembled in the summer of 1861, thereby either leaving it to be inferred that the neces- sity no longer existed, or what is more true that body felt disposed to allow the course of the Presi- dent to continue. There was thus no alternative ; except for the people of this State, in the majesty of their strength, to rise and declare their want of con- fidence. The vote has been taken and it stands with all its consequences — the proof of a divided people as regards this policy of the administration in the con- duct of the war. I deplore its results as an Union-loving man. They are more disastrous to our cause than the loss of an hundred battles. This war has been upheld by the people of this State because they desired to see the obligations of the Constitution enforced against the miserable oligarchy of the South and to 25 crush their unjustifiable rebeUion against the govern- ment and authority of the Union But they did not intend that their rulers should disregard the Consti- tution towards thera. It is an inconsistency wliich the future historian will point out as at once inex- plicable and unfortunate, that the federal administra- tion while seeking to enforce the constitutional duties of the rebelsj^ has been itself guilty of violations of its constitutional obligations to the people of the loyal States, where the courts are open, the judges pure, and the authorities vigilant to punish treason. The consequence of this departure from principle has been painfully apparent. Whatever may have been the guilt of many of those arrested and confined — and I doubt not that many were guilty — it is no less true that innocent men have been incarcerated through political or personal enmity and the servile zeal of subordinates, till their health has been de- stroyed and their intellects crazed. It is thus the people have become divided and depressed. They stand aghast at the frightful despotism into which, if it be not checked, the country must fall. Sir, I have done. 54 Mf C" V o^^ 'o . » * j\ ^ , . . 1 ** 1 0^ ^ * *^' / .^°'^^.. ^' O, 'o , » * .