(JvisWdld. S ) '- at^aitaj O, 7►, ibc re&olu^i U9ViS rela^ Wr«" it/C to M%e. SM&p^n5i«»«o <»f tVi« •^ T t ^abc^« •Corpus iinrf arr«£i1~ ftl >r d»s Uval p ■f «.r&otiS, ^ Book Qr?n >^/* V/f- -K*V'::»r J ; I n • SPEECH OF HOi S. 0. GPJSWOLD, OF CUYAHOGA COUNTY, On the Resolutions Relafhe to the Suspension of the Wril of Habeas Corpus and arrest of Disloyal Persons, DELIVERED IN THE OHIO HOUSE OF REPRESENTATIVES, JAlSrUARY 29, 1363. Mr. Speaker: — At this late day in the discuasion of these resolutions, it will not be expected that any new argument can be pre- sented ; but befoie any vote is taken, I desire to oiler a few suggestions upon tiie matters under consideration. The debate has taken a very wide range. Almost every topic which at present agitates the country has been com- mented upon duiing the past week. But, in- siead of following in t.hp track of those who have preceded me, I would recall the atten- tion ot the House to the original subject of this long discussion — to the resolutions of the gentleman from Franklin, JMr. Dresel. They do not purport to come from the petition or ui^on the complaint of any of our constitu- ents. None of " the eleven citizens " therein mentioned, ask for any action on the part of this General Assembly. The chief" martyr " the member from Fairfield, (Dr. Olds ) e.x- pressly declares that he does not ask for any interposition on the part of this body. On the other hand, the preaml)le recites that the Caovernor of Ohio, in a recent speech, not de- livered as Goveruor — not in his official ca- ]iacity —- but m an address as a private citi- zen, made certain statements. Is it proper or becoming this House to take action upon what the Governor may happen to say in his unoHicial character? Indeed, sir, no practi- cal action — no beneficial result is proposed by these resolutions. Durinif the five lou"- iiours that the member from "Fairfield occu° pied the floor for the delivery of his tedious tirade and re-hash of old stump speeches, he did not suggest a single idea tending towards any practical result. To what end are we to make the investigations required, as to who -svas arrested — where confined — how dealt Jt^ith — and when discharged? When these nets are ascertained, what further action do ^se resolutions propose ? None, sir,— none ^fiitever. True, it is declared that the honor •( of our Governor requires this investigation, and that these enquiries are necessary for his vindication. I doubt not our worthy Execu- tive would say of these new friends, "" beware . of Greeks bearing gifts." (Not onlv, sir, isnol- beneficial action or result proi)osed, but on the very face of the matter, as well as from tlie course of this debate, the animus of the resolutions is apparent. Their object was lo provoke political discussion, to mcVease party strife, to destroy our confidence in the chief l^xecutive, and perchance weaken the power of the Government in this time of deadly peril. Even if I lielieved that the President had no right to suspend the writ of Habeas Corpus, and that the arrests of these alleged disloyal persons, was in fact, unlawful, I could have no sympathy with the spirit of these resolutions; I could in no manner lend my- self to the accomplishment of any sucii pur- pose or intent. If the mere policv of these arbitrary arrests," as they are called, was legitimately before us, I should not hesitate to condemn it. In seizing ranting editors and broken down politicians, I think the Government has made a great blunder. The manner, too, in which it has been done, has not commended itself to the people. The exercise of this high power has necessarily been under the charge of the War Depart- ment ; and in this matter, as well as in his control of the war news, the chief of that bureau has shown too great a lack of confi- ( dence m the intelligence and good sense of the people. If he had made public the causes ot arrest and detention. 1 have no doubt his action would have been g^ nerally approved. But we are not called upon to ex- press our opinion as to the good sense of the Secretary of War. The i)urport of these resolutions and the tenor of this debate reach far beyond that disbeliever in Jomini and the science of war — far beyond him ; and would ^ Vv have this General Assembly, so far as its action would go, arraign and impeach the President of the United States. Differing, as I do, with many of my brethren of the Union organization — believing their radical policy to be ruinous — yet to the purpose and intent of tliese resolutions, I can give no counten- ance. Whatever may be the errors of the Government, it needs the support of every loyal man. Admit, for the sake of argument, that the President has exceeded his lawful pow^'rs, yet his error has been upon the right side. It has grown out of his earnest devo- tion to the country — out of his desire to speedily and more surely put down the re- bellion. It is an error which all men who de- sire the success of our arms can readily over- look and pardon. But have the gentlemen who have argued 171 favor of these resolutions made a case against the President ? is it by any means clear that the power exercised by the Presi- dent is not given him by the constitution ? I do not propose to renew the argument. It has been ably and fully presented by my colleague, (Mr. Dickman,) and by the gentle- men from Logan and Montgomery, (Messrs. West and Odlin.) But, sir, some remarks have been made by the eloquent gentleman from Hamilton, (Mr. Sayler,) who has just taken his seat, to which I must give a passing notice. To the learning and eloquence of that gentleman I always listen with pleasure. I give him full credit for his avowal of loyal- ty and devotion to the Union. With much be has said I have full accord and sympathy; but, notwithstanding his learning and elo- quence, it seems to me his conclusion was "lame and impotent." He argues that the President has no power to suspend the writ of Habeas Corpus upon three grounds, viz: From the history of the writ — from judicial decisions — and from the context of the con- stitution. In his argument from the history of the writ, he has given us a long disquisi- tion on the struggles of the English nation to establish free institutions. It is history for all to read with pleasure and profit. Its les- sons are apt for the present hour. The gen- tleman takes just pride to himself that he be- longs to that Anglo-Saxon race, which, through long ages maintained its indepen- dence against the Plantagenets, the Tudors, the Stuarts, and finally, through innumerable conflicts on flood and field, established the civil liberties of England. Does he boast of belonging to such a race ? I can well say in tltat respect, " I am a citizen ot no mean city." My lineage, from the earliest days, have taken part in this great contest for free Institutions. On the side of liberty their lives have been nobly offered, their blood has been freely shed. The gentleman more than once sought to impress upon our minds the aphorism that "from age to age history repeats itself" Did it not occurto the vivid imagination of thegen- tleman that both in magnitude and the con- sequences involved, the present great contest surpasses anything thaf ever happened on British soil ? Is not the great contest here reproduced in the Unhed Stales, and as much enlarged as a continent exceeds an isle? Is the gentleman fully alive to the importance of this great American ccmtest ? In' emere temporaiy evil of an alleged usurpation of power by the President, does he lose sight of the infernal attempt of this great conspiracy to overthrow alike both President and con- stitution ? iThe gentleman is fond of sayino- that he is "equally opposed to abolitionism on the one hand, and secession on the other." While I agree with him as to "abolitionism" as against "secession," I fear he is altogether too tame. WMiat is to be feared of abolition- 1 ism ? It is but a theory ; it can n(^ver make ' the black man white. But " secession" is in ; arms ; and its success will establish the most ' cruel and barbarous aristocracy that ever cursed the earth ! Tthank the gentleman for his historic readings. I wish their lessons could be impressed on every heart. My mind would glow with hope, if our whole northern people could be infused with the firm, sturdy spirit of old Anglo-Saxon freedom. But "-hat lessons does the gentleman draw from this source of inspiration ? What teachings does he impart ? Wot the clarion cry " to arms;" not "death rather than dishonor;" not that we should rally under our glorious fiag, and with united force crush out the re- bellion. Alas, no! In vain did I watch for such a strain. I only heard the feeble echo ot what traitors and aubniieeionisis boldly declare. He is terribly exercised lest Abraham Lincoln will destroy our constitution. He fears that the President has exceeded the just bounds of that instrument, and that we should immediately throw around it the protection of this General Assembly. But his logic is as faulty as his moral is puerile. His argument is that because the King of England has no power to suspend the Habeas Corpus, therefore the President of the United States is prohibited from exer- cising that power. I need not point out the distinction between the powers of our chief Executive and those of the Sovereign of Eng- land, or the falsity of the proposition — that whatever is prohibited to one is prohitited to the other; or the reason why the power in the given case should be withheld from the latter, while it might be safely entrusted to the former. This has already been ably done by the gentleman from Wood, (Mr. Cook.) I only allude to it in order to show the weak- ness of his syllogism — the non sequitur in his logic. Again, he devotes a part of his six hour's speech to a review of judicial decisions and opinions to sustain his proposition. He ad- mits that the precise question has never been adjudicated. On the other hand, I do not deny, that, so far as the dicta of judges and the opinions of law-writers are concerned, the weight of authority is in favor of that con- struction which would give to Congress aoA ^A3 not to the President the power of suspending till! Habeas Corpus. It is easy, also, to see how this notion obtained force. Judging from the analogy of the coimuon law, and that this power was vested in Parliament alone, -ey naturally aimed at this conclusion. But theseopiiiioiis were arrived at without the crucial test of actual trial. It is only when the severe case arises that the whole depth is probed. These conclusions^ were arrived at in times of comparative peace ; not when the very foundations of the government itself were shaken, and the minds of all men were aroused to tind some " arm of s.ifety." There has been an overtiauliug of old opin- ions and ideas; and Che viewsof the bestand wisest have undergone, the greatest changes. Wiien the President was first called upon to act in this matter, the Capitol and Maryland swarmed with secret trail ors, and tjie rebels were counting on easy victory. Whom to trust was the great inquiry. Dishonor, in- gratitude and treachery unparalleled, were suddenly displayed. The attack was sudden and the danger immineni. The President, honest — anxious to act rightly and for the best — sustained by the opinion of the Attor- ney General and oilier eminent jurists — de- cided that this great prerogative, to be exer- cised only in case of rebellion or invasion, and only then, when required by the public safety, belonged to theExecutive department. Acting upon this decision, the secret trai- tors of Baltimore and Washington were ar- rested before their infernal plans could be executed, and Maryland was saved from civil strife, and forever lost to the ariHed confeder- ates. The power has since been exercised to pre- vent the mischief of tho>'e who would dis- courage enlistments, and who, mistakenly or otherwise, were giving aid and comfort to the rebellion. Whether this latter exercise was wise or unwise is not the question, but does this power belong to the President? Con- gress has virtually admitted that it does. The Judiciary have to pass upon it hereafter. But is it for tliis General Assembly to antici- pate the Judiciary? Are we to set ourselves up as a high court of inipeiichment? Have we not been wasting our time in vain and un- profitable discu,ssion ? What authority is to decide ihat the construction of the constitu- tion by the President is not the true one ? In their eagerness to find fault and arraign the President, the gentlemen on the other side have forgotten the old doctrines of the Democracy. Much has been said of the opinions of Oeneral JncJcaon. it is claimed by the gentlemen on the one side, that his con- duct and opinions are precedents for the pre- sent Executive, and on the other hand, much time ha-} been devoted to explain away the faias so relied on. The histoiy and memory of General Jack- son are, so far as this House is concerned, is the e->pecial property, of the gentlemim Irom Haaxilton. Willi him this is an inexhausti- ble topic. Let me give you his views on the duty of the President to construe the consti- tion for himself I read frcm his veto mes- sage of July 10, 1832, page 4: " The Congress, the Executive and the " Supreme Court, must each for itself be " guided by its own opinion of the Constitu- " tion. Each public officer who takes an " oath to support the Constitution, means " that he will support it as he understands " it, and not as it is understood by others. " It is as much the duty of the House of Repre- " sentatlves, of the Senate and of the Presi- " dent, to decide upon the Constitutionality "of any bill or resolution which may be ■' presented to them for passage or apjiroval, " as it is for the Supreme Judges, when it "maybe brought before them for judicial " decision. The opinion of the Judges has " no more authority over Congress than the " opinion of Congress has over the Judges, " ■ nd on that point the President is indepeu- " dent of both." Again, in his famous protest, in reply to the claim that the Sena'e might compel the President to yield hisopini(m by withholding appropriations, etc. " If the President should " ever be induced to act, in a matter of official " duty, contrary to the honest convictions of " his own mind, in compliance with the " wishes of the Senate, the constitutional in- " dependence of the Executive would be as " effectual ly destroyed as if that end had been " accomplislied by an amendment of the " Constitution, .followed to its consequences, " this principle will be found to effectually " destroy one co-ordinate department of the " Government, to concentrate in the hands of " the Senate the whole executive power, and " to leave the President as powerless as he " would be useless." It is admitted by all the gentlemen on the other side, that the precise question as to who should exercise the power of suspension of the Habeas Corpus, under the Constitutioi;, has nevt'r been settled by any authoritative practice or decision. No man is bold enough, or so regardless of truth or decency as to charge Abraham Lincolm with corruption. How then stands the case, applying to it these doctrines of General Jackson ? The rel>e!lion existed. Secret traitors swarmed in every department of the Government. The public safety required that the writ should be suspended. It was a question of construc- tion. The President, anxious to do his whole duty, with the best lights he could have for his guidance as a co ordinate power in the Government, construed that section of the Constituti(m as giving himself the power of suspension. If this was his ho ne-'^t conviction in a malte,)' of official duty, was he not bound to exercise the power? Was he not bound to act upon his understanding of the Consti- tution ? In the matter of ilie exercise of power under a construction of a particular clause, is not the Executive Departni'-nt equal to Congress or the Judiciary? How can *>.-^N ,4 gentlemen— how can the Democracy, who ..follow, as by instinct, — the opinions of An- .t,d;"ew Jackson, complain of Abraham Lin- coln? The cry of "tyrant" — "usurper"— "a violation of the Constitution," is cheap polit- ical capital. When General Jackson an- nounced these doctrines which I have read, liiese very terms were used by the Whigs ^without stint. The whole vocabulary of r. abuse was exhausted by I hem, and poured out upon his devoted head. But, Sir, Gene- ral Jackson was sustained by the people. These views of his, so bitterly denounced, have become, with proper limitations, the settled theory of our Government in regard , to the independence of the Executive. So, I '; trust, it will be with Abraham Lincoln. By false party cries, by political deceit, the peo- ple may, for a lime be divided, and led astray ; but they are never to be led into submission to Southern despots. When these Ipaists have cleared away, and the people shall see and know that the President has been actuated by a sincere purpose to save Ins country — to preserve the Government — he will go down ^o the latest day, not only as Lincoln "the honest," but Lincoln "the liiithful and true." The third and last point relied upon by the gentleman, and so contideutly urged by him, is the argument based upon the context of the Conslitutiou. He says that the clause .relating to the suspension of the privilege of \ .'the writ, is a restriction upon the legislative department; and as the restriction is upon ' Congress, no power but the one restrained could lawfully exercise the right in the ex- cepted cases. TIk^ argument would be con- clusive if the assumption upon which it was based, i-ested upon fact. The gentleman saw the necessities of his case; and he boldly assumes that the whole of the 9th section of Article I is a restriction upon the powers of Congress. The clause iu question is in the 9th section, and the conclusion therefore would be inevitable. But unfortunately for his iirgu- ment, his major premise is false. It is true, tluU the 9th section of Article I is placed un- der the chapter entitled "Legislative Depart- ment;" and it is further true, that the 9th section contains restrictions upon the power of Congress. But the statement in its full length and breadth is not true. The 6th jiangraph of the 9th section, viz : "No money " shall be drawn but iu consequence ot ap- " propriations made by law ; and a regular " statenieni of the receipts and expenditures " of all public money shall be published from time to time," is clearly a restriction upon the "Executive Department of the Government. The collection and expenditure of public money is an executive, iiot a legislative duty. So likewise is the succeeding paragraph, pre- venting the acceptance of any "title," etc., a restriction, not upon Congress, but upon individual citizens. The whole of the next section (10) is a restriction, not upon Congress, not upon the Executive, not upon individuals, but upon the States of the Union. Here, then, we have in the context, limitations upon Con- gress, the Executive, tlie States and individ- ual citizens. In the phraseology of the par- agraph in regard to the suspension of the writ, there is no indication upon whom the limitation and resti-ictions are placed. Noth- ing is anywhere said by whom the power in the excepted cases is to be exercised. The conclusion that the Constitution itself declares that this peculiar power belongs alone to Congress and not to the President, is there- fore an assumption, and we ai-e left to ascer- tain the true intent and meaning of the par- ticular clause, as in all other cases of doubtful import. The anrimi^nts resting upon policy, convenience, and the adaptation of the in- strument itself to the necessities of the nation and the actual condition ol affairs, are all entitled to their proper weight. So, also, the Constitution is to be taken as a whole; and if the denial of this power to the Presi- dent renders other parts, or powers given, nugatory, then this denial is wrong in theory, and the power lawfully belongs to him. We are theretbre led to a consideration of the different grants of power, given in the Constitution. "Every one must be struck, at the outset, with the difference between the grants of legislative and executive power. On the one hand, the subjects up