.P33 
 
 ^ i^ yg-i/ 
 
LIBRARY OF CONGBESS 
 
 012 026 530 1 
 
 

 WRIT OF HABEAS CORPUS. 
 
 SPEECH 
 
 OF 
 
 HOK JAMES A. PEAECE, OP MARYLAND, 
 
 IN THE SENATE OF THE UNITED STATES, JULY 30, 1861. 
 
 The Senate resumed tlic consideration of the joint reso- 
 Ititioii (S. No. 1) to approve and confirm certain actsof tlie 
 President of the United States for suppressing insurrection 
 and rebellion. 
 
 Mr. PEARCE said: 
 
 Mr. President: Before the vote is taken, I 
 desire to say to the Senate that it had been my 
 purpose from an early day of the session to ad- 
 dress them at length on the subject of this reso- 
 lution. But J have found myself in a condition 
 of health that has made me physically incapable 
 of doing so, and I am under medical direction to 
 avoid the excitement of public speaking. Never- 
 theless, I am not willing, sir, that my vote shall 
 be given upon this resolution without saying a 
 very few words to explain the position which I 
 occupy. 
 
 Mr. President, I am one of those who, from 
 the commencement of this controversy, lamented 
 the progress of that antagonism of sections which 
 seemed to mc from the beginning to promise the 
 calamities which have since gathered around us. 
 I was most sincerely anxious that the dissolu- 
 tion of the Union should not be the result, either 
 of the political condition of the two sections of 
 the country, or of any other conceivable state 
 of things; and I looked upon it as the most im- 
 portant interest of my State, of all others, that 
 the Union should be maintained in its integrity. 
 A small State, situated in the very heart of the 
 Union; penetrated by its great bay and its afflu- 
 ents, so as to be accessible at all times to those 
 whose maritime powercommands the sea; border- 
 ing upon one of the most powerful free States of 
 this Union, and within a very short distance from 
 another, the most powerful of all the States in the 
 Union; deeply interested in her trade with several 
 southern States which seemed to be likely to be 
 cut off from the residuary States; largely inter- 
 ested, too, in trade withPennsylvania, with Rhode 
 Island, and with other of the northern States; it 
 was impossible to conceive a condition of things 
 which could be more disastrous to the State of 
 Maryland than the dissolution of the Union. 
 
 Sir, if there had been no patriotism in Mary- 
 land; if there had been no cherished recollections 
 
 of the glories of the past; of that glorious Revo- 
 lution, in which we, small in population and lim- 
 ited in territorial extent as we were, had borne a 
 not inglorious part; if there had been no attach- 
 ment to that flag which we had so long been 
 proud to hail as the common standard of the coun- 
 try, still our interests were such as bound us in- 
 evitably to the cause of the Union. We did not 
 believe in the right of peaceful, constitutional 
 secession. We saw no mode of separation from 
 the Union other than revolution; and we were not 
 sensible of any grievances so intolerable as to ab- 
 solve us from our allegiance, and require us to 
 make, or justify us in making, a revolution, with 
 all its uncertainties and dangers and the probable 
 or possible consequences, involving not merely 
 our future relations, but our peace, security, pros- 
 perity, and happiness for all time. I have not 
 changed a jot of these opinions and feelings from 
 that day to this; and it is the prevailing sentiment 
 in my State now — now, when that State has felt 
 peculiar evils growing out of the existing con- 
 dition of things, and has suffered in violation ot 
 private and public rights as no other State has. 
 Though in the Union; though loyal to a large de- 
 gree; though represented in the other House of 
 Congress exclusively by men who are Union 
 men, who have been elected as such by enormous 
 and unprecedented majorities; though still firm 
 in these convictions and in this attachment, my 
 Slate has been subjected to what we conceive 
 to be positive, arbitrary, causeless, and wanton 
 oppressions. 
 
 Now, sir, while I have not changed these sen- 
 timents of Union; while I desire, if possible, 
 that the Union may be preserved in the face of 
 all the probabilities which I confess seem to be 
 against it, I am not willing that a course of pro- 
 cedure shall be adopted in Maryland, which 1 do 
 not believe to be sanctioned by tlie Constitution, 
 but at variance with the plain principles of the 
 Constitution, and with the essential rights of 
 republican liberty. 
 
 The suspension of the privilege of the habeas 
 corpus by executive authority is a violation of the 
 principles of public freedom which have been 
 consecrated for centuries. These principles wene 
 
2 
 
 P>3 
 
 dear to our Anglo-Saxon forefatliers before the 
 the period of Magna Charta. From the days of 
 Magna Charta, which, seeking to restore ancient 
 rights, provided that no freeman should be taken or 
 imprisoned ivithout the lawful judgment of his peers, 
 or the law of the land, down to tne declaration of 
 our independence, that principle has been dear 
 to the freemen of England and America. From 
 Magna Charta, about the year 1200, down to the 
 revolution of 16G8, there was a constant struggle 
 between the people and the Crown for the pres- 
 ervation of this privilege, the only one which 
 guaranties personal freedom anywhere — the free- 
 dom from being arrested and imprisoned, except 
 by lawful process. Without this guarantee, no 
 Government can be called free; no people can feel 
 that sense of security which is indispensable to true 
 liberty; and all the boast of constitutional bar- 
 riers to despotism are utterly idle and vain. 
 
 I will not undertake to describe the struggles 
 between the people and the monarch throughout 
 that long period. We know that the power of 
 arbitrary imprisonment was an enormous engine 
 of oppression, and was most tyrannously used. 
 The Commons of England resisted it in all its 
 phases; and at last, even in the time of the des- 
 potic Stuarts, succeeded in restraining the execu- 
 tive authority and snatching from it this pretended 
 power to arrest upon the King's command with- 
 out process of law. 
 
 In the time of Charles 1, the Petition of Right, 
 accepted and signed by the King when the people 
 of England were led by an assembly of states- 
 men, declared these arbitrary imprisonments to 
 be illegal, and thus secured, as was supposed, a 
 return to the great rule of Magna Charta. 
 
 We know, too, sir, how royal power, with I 
 judicial minions depending upon its pleasure, con- j 
 trived to avoid, evade, or delay the operation of 
 that rule. De Lolme tells us that the case of an 
 obscure individual in the reign of Charles II led 
 to another successful struggle between the Com- 
 mons and the Crown. One Jenks, a plain citi- 
 zen, was charged with uttering mutinous language 
 at a meeting in Guildhall, where he had moved a 
 petition to the King for a new Parliament. For 
 this he was illegally committed by order of the 
 privy council, and detained for two months. 
 This violation of Anglo-Saxon right stimulated 
 _4bat noble struggle of the people which resulted, 
 in the thirty-first year of Charles II, in the pas- 
 sage of the habeas corpus act, which defined the 
 right of the citizen to judicial relief from illegal 
 imprisonment, made the duty of the judge imper- 
 ative, and imposed a heavy pecuniary penalty upon 
 him for denying it. This act only sought to se- 
 cure the rights of the citizen which honest judges, 
 even before the judicial tenure was made inde- 
 pendent of royal authority, had affirmed. It 
 was in the reign of Henry VI that an English 
 judge, when asked if it was not lawful for one 
 to arrest a party upon the command of the King, 
 said " No; if 1 were to arrest a man even in the 
 presence of the King and by his command, noth- 
 ing could save me from the action of false im- 
 prisonment which the party would have against 
 me." 
 
 Then, air, the declaration of rights and the bill 
 
 of rights, in the time of William III, consecrated 
 this principle; and the independence of the judi- 
 ciary made it impregnable; and from that day to 
 this, never has there been in England a suspen- 
 sion of the privilege of habeas corpus, except by 
 the voice of Parliament, whose omnipotence com- 
 passes everything done by legislative authority. 
 
 There have been many occasions when it has 
 been deemed necessary in Great Britain to sus- 
 pend the privilege of the habeas corpus. It was 
 suspended during the time of William III, and of 
 Anne, a period of great intrigue, when the valid- 
 ity of the settlement of the Crown, at the revolu- 
 tion, was vehemently disputed; during the reign 
 of the Georges, when the Scolts' rebellion of 1715 
 and 1745 took place; during a portion of the 
 stormy periods of the French revolution; in Ire- 
 land during the great rebellion of 1798; and upon 
 the occasion of the great riots which followed the 
 peace of 1815; and its last suspension, I believe, 
 was in Ireland'in 1848, during what was called 
 Smith O'Brien's rebellion. 
 
 It is well to observe how the English nation, 
 attached as they are to the form of monarchy, but 
 great and glorious in maintaining their freedom 
 against executive authority at all times and against 
 all odds, have preserved that principle; and when 
 Parliament has suspended the privilege of habeas 
 corpus, how carefully the law has been guarded. 
 In passing laws for this purpose they have always 
 limited the time during which the parties arrested 
 for highly treasonable practices, or suspicion of 
 them, may be detained without bail or mainprize; 
 and in the bill passed in 1848, during the last Irish 
 rebellion, they went further, and required that 
 such detentions must be of persons taken on war- 
 rants signed by the Lord Lieutenant of Ireland, 
 or by six counselors of the privy council, or their 
 chief secretary. They require, further, as a guard 
 for the liberty of the subject, that a copy of the 
 warrant thus to be issued shall be transmitted to 
 the clerk of the Crown for Dublin, and filed by 
 him in the office of the pleas of the Crown in and 
 for the city of Dublin. They do not intrust to 
 inferior military officers, even in times of rebel- 
 lion, this discretion, so liable to abuse, for they 
 know and acknowledge that if this inestimable 
 privilege is liable to be suspended by the will of 
 one individual, it is subject, of course, to the 
 caprice, the passion, the malignity, and folly of 
 the party, whosoever he may be. How much 
 more is it liable to these influences — unjust, un- 
 holy, and infamous — when it may be exercised 
 by a subordinate officer, no one knows who, for 
 an indefinite period, and without any public evi- 
 dence of the order under which the odious arrest 
 and imprisonment may be effected, as seems to 
 be the case with us in this land of republican free- 
 dom and written Constitution, ordained for the pur- 
 pose, among others, of securing the blessings of 
 liberty to the people of the United States and their 
 posterity. 
 
 Sir, in my own State of Maryland, where this 
 privilege has been suspended, 1 cannot, in most 
 instances, trace the order of arrest to any act of 
 the President, or of General Scott, or of General 
 Banks, or of any superior officer. 1 have, in some 
 cases, where the parties were men of peculiar 
 
 
position, traced it to General Banks, oi- his pred- 
 ecessor; but in general wc cannot trace it. A 
 major of New York militia, in one case, wliose 
 name I do not remember, and probably shall never 
 hear again; some person even of less authority — 
 a captain of militia, in one instance, from some 
 other State — has arrested a party; and these ar- 
 rests have been made, not upon any.lawful assign- 
 able cause; not by any warrant for which the party 
 may be held thereafter responsible; not by the 
 ordinary superior military authority, nor upon 
 any suggestion that authorized the suspicion that 
 the party was guilty of practices treasonable in 
 their nature or dangerous to the Government, but, 
 as I believe most firmly, upon intimations con- 
 veyed by base and unprincipled men, who, to 
 gratify private malignity and personal or political 
 hostility, have rendered persons far more respect- 
 able than themselves, and quite as loyal too, the 
 victims of this tyrannous oppression. What is 
 tyranny, sir, if we may not thus designate injust- 
 ice practiced upon men, whether communities or 
 individuals, by illegal and irresponsible authority? 
 That is the very highest and the very worst tyr- 
 anny, in my judgment; and it is that for which I 
 object to the suspension of the habeus corpus by 
 executive authority at this time. 
 
 Mr. President, we thought when we were adopt- 
 ing our Declaration of Independence, that we were 
 preserving all the principles of Anglo-Saxon lib- 
 erty. It was because of the violation of those 
 principles*that we entered into the controversy 
 with our mother country. One of the causes of 
 complaint against George III in the Declaration of 
 Independence was, that he had affected to render 
 the military independent ofand superior to the civil 
 authority; and when wc adopted the Constitution 
 of the United States, it was no new thing with us 
 to declare that the privilege of the writ of habeas 
 corpus should not be suspended, except when in 
 cases of rebellion or invasion the public safety 
 should require it; and it was nota new thing with 
 us that tiiat privilege, thus authorized to be sus- 
 pended in certain limited cases, was to be sus- 
 pended only by legislative authority. The Con- 
 stitution, when it declares that the privilege of the 
 •writ o( habeas coiyus shaW not be suspended ex- 
 cept when in cases of rebellion or invasion the 
 public .safety may require it, does not describe 
 the sort of writ which is meant, because it was 
 well known that every intelligent freeman under- 
 stood only that one writ of habeas corpus, which 
 was intended for the protection of the personal 
 liberty of the subject or citizen. The Attorney 
 General, in an opinion which I see he has given 
 to the President, aeks the question, which one of 
 the many writs of habeas corpus it was.' as if any 
 intelligent man, as if he himself, ever doubted 
 which it was. Who supposed that the privilege 
 alluded to in the Constitution meant the habeas 
 corpus ad respondendum, or the habeas C07-pus ad 
 testificandum, or any of the others, which are not , 
 worth a button now, being superseded by other. 
 processes.' Whoeverdreamed, whatlawyer, what 
 commentator, what intelligent politician, what 
 statesman, ever dreamed that any other habeas 
 corpus was intended by that clause of the Con- 
 stitution, than the habeas corpus ad subjiciendum. 
 
 i which is the only remedy for freemen against 
 [tyranny and oppression, let it come from indi- 
 ! viduals out of power or individuals in power.' 
 
 Our fathers, in the amendments to the Consti- 
 tution, guarded against the very possibility of 
 any abuse of this sort, as they supposed, when 
 j they declared, in the fifth amendment to the ar- 
 ticles of the Constitution, that no man should be 
 ! deprived of his liberty without due process of law. 
 When they put into the Constitution the provis- 
 I ion in regard to the habeas corpus, they did so with 
 ! the full knowledge of what it was in Englaiid at 
 the time when our sturdy ancestors settled in 
 America, and what it was in all the States of the 
 Union when the Constitution was made. They 
 knew that it was the great bulwark of personal 
 liberty there and here — the right of rights, as the 
 Senator from Kentucky properly called it. A writ 
 of right it is, and a right of rights it is, and with- 
 out it we have no rights; and its violation by ex- 
 ecutive authority is just as much to be tolerated 
 as a violation of any other constitutional princi- 
 ple, no matter how vital and how sacred it may 
 be, if anything can be considered more sacred to 
 freemen than personal liberty. 
 
 Besides, sir, the Constitution, while it i-ecog- 
 nizes the right of every freeman in the United 
 States to the writ of /tafceascorptts for relief against 
 imprisonment, for deprivation of personal liberty 
 by any restraint upon it, does not provide the 
 machinery by which that writ shall be carried into 
 operation. It left that to Congress; and Congress 
 very properly, with a full understanding of the 
 subject, at its first session, I believe, passed the 
 habeas corpus act, by which jurisdiction was given 
 to the courts of the United States, on that subject; 
 and the Supreme Court of the United States have 
 said that we must look to the common law for the 
 construction of it. The right is therefore both a 
 constitutional one and a statutory one. Shall I 
 he told that a statutory right can be taken away 
 except by a statute.' Who has the right to take 
 away, either permanently or temporarily, the au- 
 thority of the courts upon that subject.' It is le- 
 gislative in its character, and it must be by legis- 
 lation that it shall be repealed, and by legislation 
 that it shall be suspended, if at all. Suspension 
 of a law is but a temporary repeal of it. It is 
 therefore legislative in its character, and cannot 
 be referred to the power of the Executive, with- ^ 
 out confounding these powers of government, 
 which it was our special object to keep sepai'^te 
 and distinct. It was a legislative power in Eng- 
 land. Why is it to be pretended thatit is an ex- 
 ecutive one in republican America.' It is beyond 
 the power of the Crown under a monarchy; and 
 became so after long and arduous struggles of the 
 people. Why should it at once elude the legis- 
 lative authority here, and settle down into the 
 hands of our Executive, without a word in the 
 Constitution to indicate such a departure from the 
 ijest examples of liberty set us by our English 
 forefathers? You will find, upon referring to the 
 Constitution, that the provision is found in the 
 first article, which relates to the powers of Con- 
 gress; and in that section of it which puts pro- 
 hibitions upon Congress. I have heard it said 
 that there are other things than prohibitions upon 
 
the Congress in that ninth section of the first 
 article; but whoever looks at itcarefuily will see 
 that such is not the fact; that they are all prohi- 
 bitions upon Congress; and that it is not possi- 
 ble to imply, from the fact that some of them look 
 to other branches of the Government than Con- 
 gress, that therefore this may be assumed to be 
 an executive power. 
 
 There are eight clauses in this ninth section of 
 the first article. The first relates to the prohibi- 
 tion upon Congress as to the migration or import- 
 ation of certain persons prior to the year 1808. 
 The second is the clause in question, which we 
 are now considering. The third relates to bills 
 of attainder. Of course, only Congress could pass 
 a bill of attainder; and the prohibition against 
 passing a bill of attainder is a prohibition upon 
 Congress alone. The fourth relates to capitation 
 or other direct taxes. The fifth to duties upon 
 articles exported from any State. The sixth de- 
 clares that no preference shall be given, by any 
 regulation of commerce or revenue, to the ports 
 of one State over those of another. All these are 
 prohibitions upon the power of Congress. The 
 seventh, it is said, however, is not a prohibition 
 upon the power of Congress. This provides that — 
 
 " No money shall be drawn from tlie Treasury hut in 
 consequence of appropriations made by law; and a regular 
 statement and account of the receipts and expenditures of 
 all public money shall be published from time to time." 
 
 The latter part of this, clearly, is an injunction 
 on Congress; the first part of it would be an in- 
 junction on the Executive as well as on Congress. 
 In regard to this, we must remember that this 
 clause, which is said not to be a prohibition upon 
 the powers of Congress, was not in the original 
 draft of the Constitution; it was brought in by 
 the subsequent report of a committee, very late 
 in the session of the convention. The whole 
 clause was inserted in this ninth section, to which, 
 indeed, it is appropriate; for it contains an in- 
 junction upon Congress to make annual publi- 
 cations of the receipts and expenditures; and it 
 does, in effect, prohibit their allowing the purse 
 to go into the unfetteredcontrolof the Executive, 
 but requires them to direct, by appropriations, 
 the purposes to which the public treasure, of which 
 they arc the guardians, shall be applied. The 
 last clause of this section, the eighth, is, undoubt- 
 edly, a prohibition upon Congress. " No title of 
 nobility shall be granted by the United States," 
 &c. Unless it be contended that our President 
 has royal prerogatives, and is like the King of 
 England, the fountain of honor, this prohibition 
 cannot be supposed to be intended to be on him; 
 and the permission in the last part of the clause 
 is expressly to Congress to consent to the accept- 
 ance, by an oflicer of the United States, of any 
 present, emolument, &c., from any king or State. 
 These are the whole of the eight clauses in that 
 ninth section of the first article, and all relate to 
 the power of Congress; so that, while it is legis- 
 lative in its character, and cannot be anything 
 else than legislative — it cannot be executive, for 
 the simple duty of the Executive is to sec that 
 the laws are executed, not to make them, nor to 
 repeal them, nor to suspend them. While, there- 
 fore, it is legislative in its character — legislative 
 
 as to the place in which it is put by the Consti- 
 tution, it is also legislative for another reason, 
 which may be inferred from the Constitution. 
 Tlie second article of the Constitution describes 
 the oflice of the President of the United States, 
 gives his executive powers and his duties; and 
 not one word do we sec there of any authority to 
 him to suspend the privilege of this writ, norany- 
 thing from which, by the most strained and forced 
 construction,it can possibly be implied. So that, 
 if we are to find any authority for the suspension, 
 by mere executive power, of a constitutional 
 provision enforced by legislative enactment, we 
 must look to some higher law than the statutes of 
 Congressor the Constitution of the United States. 
 I find, sir, in the letter addressed by the Attor- 
 ney General of the United States to the President, 
 that there is a great deal said about coordinate 
 branches of the Government, and the unity and 
 activity of the Executive, and about the power 
 which the President may, under an act of Con- 
 gress, exercise in the use of the force which the 
 law puts at his command for public purposes; 
 and we are gravely told that the President may 
 use the Army of the United States to eject in- 
 truders — squatters — from the public lands; as if 
 there were any analogy between that case and 
 this; the one being the case of power given under 
 a statute of Congress, the Legislature conferring 
 the power upon the President expressly, not in 
 violation of any principle of the Constitution , but 
 in subordination to it; and the other a case in 
 which they have conferred no such power, and 
 where they cannot confer any such power. For I 
 not only hold that the suspension of the constitu- 
 tional and legal provisions in regard to the habeas 
 corpus is not executive in its character, and can- 
 not be exercised by the President, but that Con- 
 gress itself cannot make the exercise of that power 
 of suspension legal by any one 'else. It is their 
 own power. It is intrusted to them exclusively 
 as one of their legislative functions, and they can 
 no more assign it than they can assign any legis- 
 lative authority with which they are invested. 
 The legislative powers of this Government must 
 be exercised by Congress, in whom alone the 
 Constitution reposes them. Then we are told 
 that the President's constitutional oath is to " pre- 
 serve, protect, and defend the Constitution of the 
 United States, "and that this " implies the posver 
 to perform" what he thus solemnly undertakes 
 to do; that as it is his duty to put down insur- 
 rection, he may, at his discretion, use all the 
 means of force which the Constitution and the 
 statutes place at his command, and that the man- 
 ner in winch he shall use these means depends 
 solely upon his own discretion. And from these 
 premises the Attorney General assumes — I can- 
 not say argues — the opinion that the President 
 may, in a rebellion like the present, suspend the 
 privilege of persons arrested by his order, upon the 
 suspicion which he entertains that they are spies, 
 emissaries, oraccomplices of those in arms against 
 the Government, and thus suspend the constitu- 
 tional provision, the enactment of Congress, and 
 the judicial authority conferred thereby. This 
 doctrine would have been all-sufficient forCharles I 
 or Charles II, and the Commons of England would 
 
have had no cause for exultation when the petition 
 of right was signed, or the habeas corpus act passed , 
 which, under this opinion, would have been worth 
 only so much blank paper as they were enrolled 
 on. It assumes that all provisions of the Con- 
 stitution are inferior to that which imposes upon 
 him the oath of office, and tiiat the power implied 
 from that oath overrides all other powers and pro- 
 visions with which it may come in conflict; and 
 so this great zeal for tiic preservation of the Con- j 
 stitution makes it a thing of wax, to be twisted 
 and molded at the discretion of the* Executive, 
 instead of an inexorable fundamental law of the 
 land, beyond the reach of President or Congress, 
 and only to be altered by the people in prescribed 
 form and mode. I regret to be obliged to say all-^ 
 ihis, because I have always had great respect for 
 not only the private but the professional character 
 of the Attorney General. 
 
 Equally unfounded in law or fact is the alle- 
 gation that the suspension of this constitutional 
 privilege by the President was necessary. 
 
 I know that never before in the history of this 
 country has it been deemed necessary to suspend 
 (he habeas corpus even by Congress; that though | 
 upon a message of Mr. Jefferson to Congress, | 
 duringthealleged treasonable conspiracy of Aaron | 
 Burr, the Senate did pass such a bill, (in secret ; 
 session, I think,) it was rejected overwhelmingly i 
 by the House of Representatives — the vote being' 
 113 to 19. I know, too, that Mr. Jefferson, that \ 
 great apostle of liberty, whom so many gentlemen ] 
 here- profess to revere as the founder of the polit- . 
 ical creed in which they place the most implicit [ 
 confidence and faith, declared himself, at the very 
 time of the formation of the Constitution, as op- \ 
 posed to any suspension whatsoever, even by 
 legislative authority, of the privilege of the writ 
 of habeas coiyits; declared himself in favor of its ! 
 eternal and unremitting force; and, sir, I very i 
 much incline to think he was right. I doubt very 
 much whether the good to be effected by its sus- 
 pension, in any condition of things in which the 
 country can be placed, will be at all commensu- 
 rate with the evil undoubtedly sure to follow from 
 such suspension. If necessity, which is an odious i 
 l)lea,knownforhundredsofyearsas" the tyrant's ; 
 plea" — a plea by which you may overthrow all 
 constitutional provisions — if that plea is efficient 
 here; if that is a justification for a violation of 
 one provision of the Constitution, it is equally a 
 justification for any and all violations of it. As 
 well may you justify the President for breaking 
 into the Treasury and taking from it'all the mil- 
 lions and the very last dollar in it, not in pursu- 
 ance of appropriations made bylaw, but witliout 
 appropriations, and in the face of appropriations 
 made for other purposes, that he may apply it as 
 he thinks needful; as well may you do that, under 
 the plea of necessity, as justify the suspension 
 of the habeas corpus under this plea. I incline to 
 think that the necessity in this latter case would 
 often be much stronger than it would be in regard 
 to the suspension of the personal right of the cit- 
 izen. Indeed, sir, the greatest danger is to be 
 apprehended from infractions of the law which 
 seem to be sanctioned by good motives. It is not 
 easy in other cases to make breaches in the Con- 
 
 stitution, but this may be tolerated when pur- 
 poses of corruption and oppression are not sup- 
 posed to be intended, when a.solemn duty only is 
 supposed to prompt a little largeness of construc- 
 tion, some straining of the Constitution for a pur- 
 pose of high patriotic duty, which disguises the 
 danger of the example. But breaches in the Con- 
 stitution once made, others are more easy; and 
 soon its enemies, with the worst purposes, rush 
 in to its destruction. As to the necessity in fact, or 
 ratheras to tlie danger to the country of permitting 
 to go at large those persons who have been ar- 
 rested by order of various military men under the 
 alleged authority of the President — I know many 
 of these cases, and can confidently say that many 
 of the persons arrested are wholly without any 
 general personal influence for good or for evil; 
 and that they will derive any political import- 
 ance which they may acquire solely from the blun- 
 ders by which they have been made into polit- 
 ical martyrs. Many of them covet political in- 
 fluence no more than they do the restraints upon 
 their liberty. They wonder at the baseness of the 
 unknown informer and the folly of the zealous 
 agent of the Executive; butare not the less indig- 
 nant at the disregard of law and constitutional 
 privilege which leaves them without the time-hon- 
 ored remedy for the wrong they suffer in the de- 
 privation of their liberty. ^ 
 
 So too, sir, these domiciliary visits, which an- 
 equally in violation of a provision of the Consti- 
 tution, are sought to be justified by necessity. 
 Now, let us see where these things are done. 
 Nowhere, so far as I am informed, except in the 
 State of Maryland, unless there be some excep- 
 tions in the State of Missouri. I believe there 
 have been some in that State. I recollect to have 
 seen one or two cases of a suspension of the habeas 
 corpus there; but chiefly it has been exercised in 
 Maryland, a loyal State — a State proved in its loy- 
 alty; a State whose remarkable quiet note, under 
 all illegal and oppressive practices, is the best proof 
 she could give of her loyalty and her submissive- 
 ness. Indeed whatever of disloyalty there may 
 be in the State of Maryland to the Union grow^ out 
 of these very abuses — the suspension of the habeas 
 corpxis by executive authority, and these unneces- 
 sary, sometimes absurd, and always irritating 
 domiciliary visits and searches, which yield no 
 public benefit whatever, and tend only to irrita- 
 tion, oppression, and mischief. 'n 
 
 It was but the other day that some officer of 
 volunteers — I do not knov who — marched some 
 three hundred of his men from a ]X)int in one of 
 the counties in Maryland to another, a little vil- 
 lage, wlier* there are about the same number of 
 residents, of every description. This little village 
 t'liund itself invested by three hundred armed men 
 early in the morning. There was a double object: 
 to search for arms, which were not to be found; 
 to search houses where there were no arms; and 
 to arrest one party, perhaps two, one of whom 
 was arrested and carried to a military camp out of 
 I the county. Well, sir, two houses were partic- 
 ! ularly designated as ]iroper to be searched. One 
 of them was the house of a gentleman of the bar 
 of distinguished ability and liigh cultivation; and 
 though I believe he is an extreme southern man 
 
6 
 
 for that region of Maryland, he nevertheless holds 
 this doctrine — that there can be no greater absurd- 
 ity possible, in the State of Maryland, than to 
 think of getting up an organization in opposition 
 to the power of this Government, and in violation 
 of its constitutional authority. He has strong 
 southern sympathies; that is about the amountof 
 it. His house was searched from top to bottom by 
 a detective police officer, who happened to be one 
 of these three hundred men marched to that point. 
 They found nothing, simply because there was no 
 conspiracy, no gathering of arms for rebellious 
 ])urposes, no intention on his part to engage in 
 any secret organization against the Government. 
 Nevertheless, he felt this searching of his house 
 to be an injustice, an affront, and an oppression. 
 The other was the case of an old gentleman of 
 over eighty years of age, who is now and always 
 has been, the strongest Union man of the county. 
 He was lying at the time on a sick bed, from 
 which his family fear he may never rise. The 
 ladies met the officer at the door, and felt very j 
 much disposed to resist, if it had been in their I 
 power; but finally, when told that his object was ! 
 to search for arms, answered promptly: " There { 
 are two guns here; one is a bird gun." " That 1 1 
 do not want," said the officer. "Then there is 
 another gun liere — a drilling gun." "Ah! that 
 is what 1 want. 'i "Very well," answered one 1 
 of the ladies; " I pledge you my honor I will j 
 bring it to you in two or three minutes; but do \ 
 not come into the house, for Heaven's sake." It i 
 so happened that a company oflitlle boys of eight, i 
 ten, or twelve years, were playing the military, 
 and drilling with wooden guns; and one of these 
 poor little wooden guns was the trophy which the '■ 
 lady brought to the officer, very much to his mor- 
 tification. I believe he did not care about receiv- 
 ing it, though she insisted upon his taking it. i 
 There are two cases. Who can suppose that • 
 any honest, loyal citizen, had given intbrmation 
 against these two gentlemen? Is it not palpable 
 that it was owing to the malicious, wanton, and 
 wicked interference of some base mischief-maker, 
 that the military were dragged some twenty miles, 
 and marched back the same distance, for the pur- 
 pose of searching these two houses, and looking 
 into a little village armory, where they did not 
 get a solitary gun, I believe? 
 _ Sir, these things have been repeated elsewhere. 
 In my own neig-hborhood, three or four hundred 
 men, who had gone over in a steamboat from An- 
 napolis to one of the. country districts, marched 
 into the town of Easton, and on their way, meet- 
 ing two gentlemen standing at a gate, arrested 
 them, and said: " you must come and march with 
 us." " Why?" They chose to give no answer, i 
 except to say, that they understood there are se- 
 cessionists in the town, and if they chose to fire 
 upon them, these gentlemen should be in the front 
 rank — take the fire first; and thus, two men, of j 
 whom they knew nothing, and who, unquestion- ! 
 ably, were not concerned in any treasonable act, ! 
 were thus wantonly arrested and marched from j 
 their residence to the town, to be contemptuously 
 dismissed. An armory, belonging to the State, ' 
 was searched and the arms taken. There were 
 some arms, I suppose not more than two or three [ 
 
 hundred guns in all, many of which were of little 
 value, being old, and having been there from time 
 immemorial, with some cannon. Two of these be- 
 longed to the commissioners of the county, and 
 had been purchased in the year 1832, just after 
 a memorable event in Virginia, and were in- 
 tended for the defense of the county against in- 
 ternal foes. 
 
 Sir, these are but a few of the instances that have 
 occurred. I have known houses to be broken open, 
 wardrobes^and bureaus to be rudely searched, and 
 young men to be arrested, because they talked 
 saucily. They were not more mutinous, I pre- 
 sume, than poor Jenks, whom the privy council 
 put in prison for talking mutinously at Guildhall, 
 when he wanted to have a petition presented to 
 the King. These young men, without public in- 
 fluence, without that position which gives control 
 of society, without the ability to command the 
 services of a single man in any organization against 
 the Government, are seized and taken away from 
 their business, one from his farm, another from 
 his store, and carried off to Fort McHenry, or 
 some other military station, and lodged there, 
 without warrant in form of law, or upon affidavit, 
 without even a decent ground of suspi<;ion that 
 they were affiliated with secessionists in arms, 
 or had any intention to associate with them, and 
 when, indeed, they were further from violating 
 their duty to the Constitution and the law than the 
 men who thus ruthlessly violated both. 
 
 In the first case I mentioned, one gentleman 
 was captured, taken prisoner, and carried to 
 Cockeysville, and there remained for some days; 
 and when inquiry was made by his friends, no- 
 body knew by whose orders he was taken. The 
 President knew nothing of it; the Secretary of 
 War knew nothing of it; General Scott knew 
 nothing of it; and I think 1 may say without any 
 impropriety, was exceedingly sorry to hear that" 
 such an act had been committed. It could not be 
 traced to any officer of superior authority. Gen- 
 eral Banks knew nothing of it; and finally he was 
 released by the Secretary of War upon represent- 
 ation of the facts to him. But while this and 
 similar proceedings have been in progress, while 
 these imprisonments have been suffered, irritation 
 has been springing up, friends have been dissat- 
 isfied, and the people have asked themselves, is 
 this the paternal Government that we have a right 
 to expect will protect us, or is it one that looks 
 upon us as aliens, as conquered foes surrendered 
 at discretion, as rebellious subjects who have been 
 reduced to a condition of obedience and vassalage? 
 I say this, sir, not so much for the Senate as in 
 the ho[>e that it may some way or other reach the 
 ears of those in power, and leach them the pro- 
 priety and the prudence of stopping these irritat- 
 ing, vexatious, illegal, and unconstitutional pro- 
 ceedings. 
 
 Sir, in my opinion there is, in the State of Ma- 
 ryland, at this time, not the slightest probability 
 of any further emeutc. No man regrets more than 
 I do the riot of the I9th of April. I unhesitat- 
 ingly admit that it was illegal; it was in every 
 respect wrong; quite as prejudicial to the State of 
 Maryland as it was injurious to the Government 
 of the United States. JNTo man rejoiced more when 
 
the organization which followed it was dissipated. 
 But 1 do not think that the disturbances of tiiat 
 day — the attack of the rioters upon the Massa- 
 chusetts soldiers and the subsequent proceedings 
 — can, without the grossest outrage, be made the 
 pretext for a series of aggressions upon the con- 
 stitutional rights of tiie people throughout the 
 State. There was a single, unorganized popular 
 tumult on the 19th of April. Senators will rec- 
 ollect that the mob on that occasion were not or- 
 ganized into an armed force. They were armed 
 with paving stones and brickbats. Those are not 
 the weapons used by conspirators who are organ- 
 ized for the deliberate purpose of overthrowing a 
 government. As for the few pistols that appeared 
 there, they will be found in all tumultuous assem- 
 blages that grow into riot. And the after proceed- 
 ings by the authorities, however much their pro- 
 priety may bo doubted, had at least one effect: 
 that of reducing, by the military organization that 
 followed , the tumultuary elements of the State into 
 such a condition that they could be controlled, 
 which, without that military organization, I very 
 much fear would not have been the case, and then 
 the evil might have been much more serious to the 
 Government, the people of Baltimore, and the 
 State of Maryland. Be that as it may, I do not 
 defend that proceeding or palliate it; but Ldo say 
 that however much gentlemen may condemn that 
 emeute in Baltimore, it was punished severely on 
 the spot; for the blood which 'flowed then was 
 more that of the people of Maryland engaged in 
 the tumult than those against whom they illegally 
 directed the riot. The resentment which was felt 
 in the North was natural, but it did not justify 
 the threat of razing the city to the ground, nor 
 does it justify any other proceedings than legal 
 ones for the prosecution of those concerned in it. 
 It must be remembered, too, that the President 
 himself was satisfied that the authorities of Balti- 
 more had acted with perfect loyalty, and that the 
 popular excitement there was an unfortunate oc- 
 currence, unforeseen by the authorities, and which 
 they could not control, though the mayor, the 
 marshal of police, and others, risked tiieir lives in 
 the effort to control it, and to protect the soldiery 
 from the attack. 
 
 Now, sir, here are the police commissioners of 
 the city who have been imprisoned for a month, 
 and during the session of the grand jury which 
 have been finding bills of indictment against per- 
 sons suspected of treasonable practices. They have 
 found a number of bills (I do not remember how 
 many) for treason, but they have found no bill 
 against these gentlemen; nor have we heard, from 
 any source whatever, any intimation of any spe- 
 dfic conduct of theirs which could be declared to 
 Be illegal. On the contrary, the only intimation 
 upon which I understand their arrest to have been 
 founded, is that contained in the proclamation of 
 General Banks on the 1st of July, in which he 
 says they were supposed to entertain some pur- 
 pose not known to the Government, but believed 
 10 be detrimental to its peace and security. I 
 think that is the language. I know I am right in 
 regard to the other words — " some purpose not 
 known to the Government." I understand that 
 General Banks admitted that there was no chargre 
 
 affecting the integrity of these gentlemen; that 
 they had been arrested rather with a view to pros- 
 pective events than for anything then done by 
 them.*f\.nd yet, sir, not only are these gentlemen 
 still suffering illegal confinement, but I see by the 
 papers of the morning that they are now being 
 transported from the State of Maryland to some 
 northern fortress, where they are to be deprived 
 of the sympathy and service of their friends, torn 
 from the partial associatioq of their families hith- 
 erto permitted, and doomed to imprisonment 
 among strangers, where kindred and friends can 
 no longer cheer and sustain them. Why is this.' 
 What prospective event makes this necessary.' 
 It is most unusual, extraordinary, and I think 
 oppressive. Partisans of the Administration in 
 Maryland may defend it; but no one else, how- 
 ever earnest and ardent in his attachment to the 
 constitutional union of the States, can be other- 
 wise than indignant. 
 
 Now, sir, this police organization is a part of 
 the State system. With as much authority might 
 this Go^rnment undertake to suppress the State 
 Legislature itself, and put its members in military 
 jails. As well might they suppress the whole 
 organization of the different departments of the 
 government of the State of Maryland. The State 
 is prostrate this moment at the foot of the exec- 
 utive power of the United States, and that for no 
 reason that I can perceive, except the fact of the 
 emeute of the 19th of April. Certainly no con- 
 duct on the part of the State of Maryland since 
 then has caused any apprehension or surmise, 
 that such a state of things prevails there as would 
 jystify the violation of the Constitution and the 
 suspension of the writ of habeas co-pus, ajad the 
 other oppressions which I have described. 
 
 Mr. President, there are other things to which 
 I should desire to allude at this time, but, as the 
 Senate perceive, I am laboring under difficulties 
 which make it very arduous for me to make any 
 remarks at all. Nothing but a deep sense of the 
 duty which I owe to my constituents, and the 
 knowledge that it was expected of me that I 
 should say something on this subject, has induced 
 me to trouble the Senate at this time. I shall, of 
 course, not vote for the joint resolution; and the 
 more, because I believe that, if these things which 
 have been done by the Executive are legal, there 
 is no necessity for Congress to undertake to vali- 
 date or ratify them; and, if they were illegal ayd { 
 unconstitutional, no p.ower of this Congress ca«^ .-^ 
 give them any authority whatsoever. Congress " 
 may pass indemnity bills; they may indemnify 
 their officers who violate the law by paying all 
 expenses whicti may be incurred ; but they cannot 
 make an illegal and unconstitutional thing legal 
 by a declaration that it is so. That is impossible. 
 The doctrine I hold, as to the suspension of the 
 habeas corpus, is sustained by the highest judicial 
 authority — by Chief Justice Marshall, Justice 
 Iredell of the Supreme Court, Judge Story, and 
 by the present pure and able Chief Justice. It 
 has never been questioned by any known jurist 
 of eminent character, unless there be one excep- 
 tion in a northern State; and it has been the re- 
 ceived doctrine from the origin of the Government 
 to the present day. 
 
}.^^Ri 
 
 'f)Ry 
 
 Op 
 
 Co/vq 
 
 ?^ss 
 
 012 
 
 026 
 
 530' 
 
LIBRARY 
 
 oor 
 
LIBRARY OF 
 
 CONGRESS 
 
 1^<snm'i1iri0A