SPEECH HON. R. S. FIELD, OF NEW JERSEY, DISCHARGE OF STATE PRISONERS. DELIVERED IN THE SENATE OF THE UNITED STATES, JANUARY 7, 1863. "WASHINGTON: PRINTED BY L. TOWERS ¦ * ' • > Now here, undoubtedly, the learned commentator takes for granted that the power is given to Congress; but it was a question that ^e was not at all dis cussing, nor was his attention particularly directed to it. The inference which he draws from the premises is a legitimate and a logical one ; but the premises themselves are assumed. No attempt is made to prpve th^em. I am willing to go further, and to, admit that an impression has verygener; rally prevailed among .lawyers and judges that this power was a, legislative power, to be exercised, by Congress, and not by the President : and I admit,! too, that the existence of sucfy an impression creates a presumption, that such is the true construction of the Constitution — a presumption whiph can only bei overcome by very strong proofs. But, .sir, if I am not very much mistaken, those proofs are to be. found, Why such an impression should have prevailed; I think it is not very difficult to understand. The truth is that we have derived not pnly the name of the writ pf habeas corpus, but all our ideas concerning itj> from England. It is a singular fact, that at, the time when this clause' was hit serted in the Constitution, the United States had no writ of habeas corpu#,-,iuii we never have had, a habeas corpus act passed by Congress to the present day.', The only legislation that has ever taken place in regard tp it has been this,; Congress has conferred upon the CourtB of the United States the power of issuing the writ of ihabhas corpus, leading ;eyery thing else in connection withit to depend upon the well-known principles of the common law. And because in England the writ of habeas corpus , can only be suspended by Parliament, therefore the conclusion has been very naturally come to, that in this country the privilege of the writ can only be suspended, by Congress. ,(. lf . , Mi\ President, the, history of this celebrated writ pf habeas corpus wouldVibe an interesting and instructive one ; but I do, not propose to pursue it upon this! occasion eftept" so far as maybe necessary: to, illustrate my argument* The right of personal liberty, immunity from arbitrary imprisonment, has always been considered a, fundamental principle of the common law of England.,' Itiftf one of those sacr>e,d birthrights, to. which the English people have . invariably ; clung with the utmost tenacity, and which they have always cherished with peculiar fondness and veneration. It had its root far back in the primeval forests of Germany. It was transplanted to England, where it formed part of the unwritten law of the Anglo-Saxons. Trampled under foot by theiiron heel of the Norman conquest, it was successfully asserted and vindicated by the bold barons in the reign of John. , Overborne and disregarded during the civil war which grew out of the rival claims of the houses of York and Lancaster, and during the arbitrary reigns of the Tudors and the Stuarts, it was neverthe less always claimed as one of the undoubted privileges of Englishmen. It was made the subject of the famous resolutions introduced by Sir Edward Coke into the House of Commons in the year 1628, and finally it was secured and protected and placed beyond the possibility of invasion by the habeas corpus act of 31 CharlesTI. This celebrated act has been the subject of unbounded eulOgiums by writers upon the British constitution. It has been considered as a second magna carta ; as the great bulwark of English liberty ; and yet it is known to all that the principle involved in it was not a new principle; it was but a solemn reassertion and reenaotment of one of the fundamental principles of the common law. That statute provided that every individual who was committed for any criminal offense whatever, should be entitled to his writ of habeas corpus, and to be bailed, tried, or discharged without unnecessary delay ; That is the^sub- stance of this act, and it is the model upon which has been constructed every habeas corpus act that exists in this country. Now, the point to which I desire to direct the attention of the Senate is this : The terms of the habeas corpus act of Charles II, were absolute ; there was no exception whatever made to them. It contained no provision for a suspension of the writ in cases of rebellion or invasion ; and therefore it follows, as a matter of course, that the onlypOssible way in which the writ of habeas corpus in England can ever be. suspended is by an act of Parliatnent. The privilege of the writ having been Created by act of Parliament; of course it required a power as high to suspend that privilege. But suppose the habeas corpus act of 31 Charles II had contained a provi sion similar to that which' exists in our Constitution; suppose it had provided that the privilege of the writ might be suspended in case of rebellion or inva sion, can any doubt exist as to what would have been the construction of such a clause ? The very term, " suspended," would have pointed necessarily to the executive power; for it would have been descriptive of that right which was so often claimed by the kings of England, of suspending the execution of acts of Parliament. . ¦ •;. Then, sir, I insist that,' in the first place, no argument can be drawn from analogy to the case of the British constitution, inasmuch as the habeas corpus act of England is absolute in its terms, and makes no exception in cases of re bellion or invasion. But I have been speaking of the theory of the British constitution. They have, however, a practice as well as a theory, and that practice is not always conformable to the theory ; or, rather, in virtue of that good sense which so eminently distinguishes the people of England', practice is often brought in to correct the defects of theory. What is the practice, then, which exists in England with regard to the suspension of the habeas corpus act? I aver that, in point of fact, the writ of habeas corpus has never been suspended in England by any other authority than that of the crown. The first instance in which the habeas corpus act was ever suspended was in the reign of William III, in the year 1696. It never was suspended during the arbitrary reign of James II, but it was suspended in the glorious reign of William III ; thus showing that in England, as well as in this country, rebellion may sometimes break out against the very best Government. The occasion upon which it was 6 suspended was the insurrection of Sir George Barclay. We have a vivid defer cription of that insurrection, from the graphic pen of Lord Macaulay. A plot, a, deep-laid plot, was about to bevconsummated for the assassination of the king and for a French invasion. Just as it was ripe for execution, just as the fatal blow was about to be struck, |t was, discovered. , It became of the utmost im portance that it should be nipped in the bud, that it should be' strangled in the cradle; and arrests were made by authority; of ; the king, and without any legal process, of the principal conspirators. Parliament was in session at the'time* and yet no effort was m^ade to; suspend the , writ of habeas corpus, because the least movement toward a, bill wpuld have alarmed the conspirators, and enabled them to make their escape;,, but after the leading conspirators had; been .ar rested and secured, then the king; came down to both Houses of Parliament and informed them what he had done. They thanked him for it, and:then.they passed two acts, arid thpse, twp acts have been followed ever since in cases of the suspension of the writ of habeas corpus. Thefirst of those acts sanctions and adopts what had already been ^one,, and declares; that all who have been or may be confined for certain specified offenses by warrant from his Majesty's Privy Council or Secretaries of State, shall be detained in safe custody without bail or mainprize ; and the secpnd act indemnifies the ministers of the crown from the consequences of „ having; made these illegal arrests, and protects them aga^st all civil or criminal prosecutions. And from that day to this, not a sjngle instance can be found in the history of England ,in yrhich Parliament have ever exercised the power of suspending the writ, of habeas oorpwuntU after it had been in point of fact suspended by the cro^rn, and then what they do is to sanction and adopt . the .acts of the, king or(hjsministers, and indemnify them against the consequences of their proceedings. . It will be perceived, therefore, fch,at if any argument is to be drawn from analogy to the case pf England, that argument is, strongly in favor. of the posi tion which I take. Jt goes to show one thing very clearly, that this power of suspension, to be operative and effectual, must be an'act , of the executive author ity. Unless it is exercised by the Executive, it can never be exercised at all ; and the question which we are this cja-y called upon to determine is, not whether the power shall be exercised by the President or by Congress, but whether the power shall be exercised at all, or whether it shall be strieken from the Con stitution altogether; for if it is only to be exercised by Congress, it is a dead letter. I admit that if Congress had the power whjch is possessed by the British Parliament, then there would be no practical difficulty with regard to this matter; for then, Congress might do here what Parliament does there: it might sanction and adopt the acts of the President, and indemnify him against the consequences which might otherwise flow feom them. But, sir, Congress possesses no such power. Unless the President of the1 United States is author ized by the Constitution to suspend the privilege of the writ, every act of sus pension is a usurpation" of power, and all whp are concernied in the execution of these arrests are liable to an action for false imprisonment. The consequences, therefore, are of the most serious character, and it is a. matter ©£ the utmost importance, not merely in a theoretical point: of view, but as a great practical question, whether this power has been conferred by the Constitution upon the President or upon Congress. I know that an argument is sometimes drawn in favor of this being a le^s* latiye power, from the position which the clause occupies in the Constitution. It is said, for instance, that the first article of the Constitution relates exclu sively to the legislativepower ; that the eighth section of this article contains an enumeration of the powers of Congress, .or what Congress may do, and that the ninth section contains an enumeration of the disabilities of. Congress, or what Congress may not do ; and inasmuch as this clause is found in the ninth sec- tion^ the argument 'is that it Was designed to 'be restrictive of 'the' power of Congress. It is a plausible view of the case ; but there are two ansWers to be .given to itjeitherione bf which I thi»k is decisive. In the 'first place, it is not true that the provisions of' this ninth'section are restrictive only of the powers of Congress^ Every clause in 'the section, I admit, is a restrictive clause, and almost every clause begins with the word "no;" but it is not true that these restrictions are restrictions upon the legislative power alone. They are restric tions upon other departments of 'the Government as well; For instance : ''No money shall be drawn from the Treasury but'in consequence of appropriations made 'by law." That is a restriction upon the executive, and hot upon the legislative department. *No ti'tile of nobility shall be granted by the United States."' That is a restriction upon the executive rather than upon the legis lative power. It' does 'not 'follow, then, because the clause' is contained in the ninth section of the Bret article, -that it is necessarily restrictive of the legislative po^er.. . ¦ ' But there is another and a very satisfactory answer still to be given. When this clause was proposed and adopted by the convention that framed the Con stitution, it was proposed and adopted not as a part Of this section, but as a part of >a very different section. It was not -proposed as a part of the article relating to the 'legislature. It-was proposed as a part of the article relating to the judiciary, and it was adopted in 'that 'form, and continued to stand as an amendment to the judiciary 'article until a short time before the convention cldsed their labors; and then, as we all know, a committee was appointed to revise the style and arrangement of the several articles, and it was 'that com mittee that placed the .cjause. w^ere,,!);, npw,stajft4s,, ..The.f^'.-.yiSfcAl1^ /*d change the position of this clause cannot possibly have been intended to affect its import or meaning; and it w^as very naturally inserted by them in this ninth section of the 'first article, because it was 'a clause' restrictive in its Char acter. But it was restrictive, I insist, not of the legislative, but of the executive power. Mr. President, another argument^— and I think a very 'strong one— in favor of this1 being an executive' and nbt'a legislative pO*er, is torbe derived from the history of the clause in i {^progress through the convention. As the clause was originally proposed, and subsequently ' modified, by Mr. Charles Pinckney, of South' Carolina,' it read 'thus1: > " The privileges and benefits of the writ of habecK corpus ihajl be enjoyed In this Government in the most expeditions and , ample maaner,land shall riotibe stfspendea" by the. UgistaMre, except upon the most urgent and pressing occasions, , and for.a limjted time, rwt exceeding ——months," Here was a proposition^, distinctly made, that the powOT of suspending the privi leges of the writ of habeas corpus should be exercised by the legislature upon ur gent and pressing occasions, and the convention refused to adopt it. At a subse- - quent period^ Governeur Morris, of New York, brought in the clauseih the form in which it dow stands in the Constitution, and it was adopted, differing from the olause originally proposed in these two particulars : first, it confined the exer cise of the power to cases of 'rebellion 'or invasion, and then there was an omis sion of all reference to the 'legislative power. This furnishes, it is true, a neg*- tiive argument, but, I submiti-an argument of great weight and power. Why was alLreference to the legislature stricken out of the clause as it was finally adopted? It could not be because the attention of the convention was not called to the subject* It could not have been the result of inadvertence. There must have been a design in it. : What could* have been that design?. It must have been either because they meant to confer this power upon the President and not upon Congress, or because- they supposed the reference to Congress was unnecessary, being implied from the language and structure of the clause. That they could have supposed there' Was any necessary implication that would have Made the use of the word ."Congress" superfluous, is not very probable, from the fact that the clause was not proposed, as a part of the article relating to the legislature, but to the judiciary ; and it is tendered, highly improbable, from the/ further fact that there, is an express reference to the legislature in other clauses, where, to say, the , least, the implication, would; seem to be much stronger than here— 7-as,( for instance, in the preceding clause of the same section. And, there fore, the only alternative to which, we are reduced.is, that no reference was made to Congress, simply vbecause theconvention intended to confer the power upon the President, and upon the President alone. '].' . • But, Mr; President; if the Convention meant to say that-Congress should ex? ercise this power, why did they not say so,? The insertion of a single word in the clause would have been sufficient to remove allj .ambiguity in regard to it. I am aware it may heiretorted, if. they had. meant ; to confer -the power on the President; why did, they net make use of 'the word ^President?". Now,Ithink a reason can be assigned why they may have meant to confer the power upon the President without any; reference. to^him, and yet why they could hot h&ve intended to confer the, power upon. Congress, without some reference to, it; and that reason is founded upon a very important distinction, which ought, not to be lost sight of, between the; language of, the Constitution when it /confers, ex,- ecutive power,, and the language of the Constitution when it confers legislative power.' All executive power is conferred upon the President ; that is, the Con stitution, confers upon the president the executive power generally ; whereas all legislatiyepower is not conferred upon Congress, nor legislatiyepower generally. On the contrary, the language. pf the first article; of the Constitution is: "All legislative powers herein granted eh&ll be vested' in a Congress." Then, it is npt enough ,tp show that a, power is a legislative j»(Ower in order to show that it is vested in Congress,; ;beeaus,e ;only those ^legislative, powers are vested in Congress which are expressly granted ;; and therefore it was not enough for the Convention to have said this privilege of the writ of habeas corpus may be suspended, without any reference to , Cougress, if they really intended that Congress alone, should exercise , that power ¦;, whereas, in, reference,, to the Execu tive, there was no necessity for, any reference, to the President, inasmuch. as the. power is, from its very nature, an executive j power, and ' executive powers gene rally are conferred upon the President. There is no enumeration of the execu tive powers of the President in the Constitution as $her.e is ,of the. legislative powers of Congress, You will, find that- ithe only executive powers which are enumerated in the Constitution 'at all, are jkrwers intended to be exercised' by the President in. conjunction with or in control of other departments of the Government. , - > , ¦ . ; , ..:•..• ..,¦.,,..,,., I think, sir, I have established that there, is nothing in the practice or in the theory' of the British Constitution ; there is nothing in the position which this clause occupies in our Constitution; there; is nothing in the history of this clause in its passage through the Convention, and there is nothing, in the omis sion of all reference;!© legislative power ...that can furnish any argument in favor of this power being, intended to be a. legislative; power. And now, Mr. Presi dent, it remains only to ^inquire what is the nature of this power ? Is it an executive power, or;is it a legislative power 1 • ,If it is an executive power,. then I insist that the only possible, rconstruction that can be put on this clause of the Constitution is thai At was designed to give the power. in question to the President. In orderi tojudge of the nature/ of the power we mrist ascertain when it is to be exercised. It is to be exercised only in two cases, rebellion and invasion. First, ,in case of rebellion — not a mere local sedition, not insur rection only,, which is opposition to some particular law, as the whisky insur rection for instance, but rebellion, which involyes the overthrow of the Oonsti- 9 tution and Government itself; which is an opposition to all laws.' Second, in vasion — not merely foreign war, but foreign war accompanied by invasion, the tendency of which, in like mfanner, would be the overthrow of the Govern ment, Constitution and laws. • ' Now, whose duty is it to preserve the Government,, protect the Constitution, and execute the laws ? The President, by his oath of offioe, swears that he will preserve, protect and defend the Constitution of the United States; and then it is made his duty to " take, care that the laws be faithfully executed." Re bellion is resistance to these laws. Rebellion is an attempt to overthrow this Constitution and Government. Who, then, is competent to decide whether the exigency has arisen which will justify the suspension of the writ of. [habeas corpus? Who but the President alone? Congress may not be in session. For. nine months out of twelve, every other year, Congress is not in session ; and yet the idea is that the framersof this Constitution meant to confer upon that body alone the power of suspending the writ of habeas corpus. Suppose Congress were in session; how could that body: know whether the exigency had arisen!. How could Congress know whether the execution of the laws had been .resisted ? They would have to depend upon the President for the infor mation upon which they were to act ; and then, while, a bill for the purpose of suspending the privilege of the writ of habeas corpus was making its way through both Houses, every individual engaged dn a conspiracy for the over throw of the, Government might be at the!;distance of a thousand miles1 from the seat of Government. How utterly impossible, then, would it be for Con gress to exercise such a power as this. This power, I admit, is a high, trans cendent power. It is a power which ought never to ,be exercised except upon the most solemn, pressing and uVgent occasions! , But, sir, it is a power the exercise of which may be absolutely essential tothe very existence of the Gov ernment ; and in Order 'that it should be officacious, in order that it should ac complish the end for which it is designed, it must be exercised with the utmost promptitude and vigor. The slightest delay may frustrate entirely the objectB sought to be accomplishd by it. The idea; then; that a power of this1 character, which depends for its successful exercise. on the utmost possible promptness and alacrity, should be exercised by Congress and not by the President, is a reflection, it seems to me, uponrthe. wisdom of. those who framed this instru ment ; it is an impeachment of their character which I, for one, am not willing to-make. ' , • • , . ¦ '¦¦ ¦ . ... . . I Mr. President look for one mOment at the circumstances which accompanied the opening of this rebellion. • If the. late. President of the United States had possessed this power, as I think he did, and if he had, been disposed to exercise it, as I think he ought, he might have crushed this rebellion in its infancy. Why^ sir, it was hatched under his. own eye-f-I was going to say in this very Senate Chamber. I remember well, and I shall never forget the emotions that I experienced, sitting in the gallery of' this Chamber in the month of February, 1861, when the Senators from Louisiana delivered their parting addresses to the Senate. I remember their . sending to the. Secretary's table to. be read the ordinance of secession , that had just been adopted by the State of Louisiana, and then they proceeded to deliver their insolent addresses, every .sentence of which was fraught with treason, and breathed defiance against the Government Oh, how. strongly I was reminded, of that fiery philippic that was uttered, upon another memorable occasion against .a conspirator who had dared to desecrate by his presence a Roman Benate. How strongly was brdught to my mind those burning words with which that great philippic opened, which has been so familliar to us in our school-boy days-,-" Quousque tandem abutere Catilina, pa» tientia nostra P' How I wished that there be obliged in candor to 'admit that for such an emergency as that of which I have' spoken, it would have been wholly inop erative. Coulda billnhavebeen introduiCedinto Congress at that time forthe purpose of suspending the privilege bf the writ>of habeas corpus in the case of those conspirators, almost every one vof Whom was a' member of this bodyr? How rabsurd, it seems to me, ife the idea that this power is one which can by; possibility be exercised by the legislative power. A conspiracy like this, having its ramificaitions in'so .many different States, will always be likely t© > .include a por.ti on of the ; members of both Houses of Congress ; and'then how impossible would ;itr be for a bill to be paissed in time to produce any effect, supposing Congress to be ii? session, whelii the rebellion breaks out. But let it once be settled that the legislature alone can exercise this powfef, and depend upon it that a rebellion ..will never break out when Congresses in. session. In thispoint of view; sir, it. does seem to me a matter of infinite importance that (this question should ibejsettoled upon true constitutional grounds ; and that if it is really a power possessed by the President, it should be so understood. Gentlemen sometimes appear to be afraid to meet this question. It stems to be imagined that this power is ,i toorlarge .and dangerous a power to be conferred ppon the President of- the lUnited' States, while it is admitted at the same time that it may safely and wisely be conferred. upijrifGongTess ; and there are those who,, in justifying the ttecent arrest made' by ithe President, prefer puttingthem- Belivesupon the ground of what is called martial law, or anyrother Governments© feeble an executive as. jthat Which we bfive, whereas the power pf Congress -is immense. ¦ As Montesquieu said with regard to 'the British constitution, if the'liBerties of England were ever destroyed 'it would be by Parliament,; so I'thinkitniaybe said with regard to this country, that if our liberties are ever destined to perish, it will be by the power of Congress, and iBot by that ;0f ithe President. And then do not those who are willing to justify these arrests upon- the ground of martial law, perceive that they are artr "toibuting to the President a power infinitely more dangerous than that which is csomiferred by this clause in ithe Constitution .? Mr. President, gentleman talk .about martial law — I say it with great respect ™-in a very vague and looSe way. In the erdiniary and popular meaning of this term, I do not believe there can.be such a thing as martial law in this country; If what is: meant by martial law.isonly the laW which is administered by a ©MJrt' martial, then I concede we have such a law ; and it is regulated by the acticles of war. But this is a law which operates only upon military men, and takes cognizance only of military matters. No one will pretend that these ar- 11 rests in civil .cases oan be justified 'by any such law as that. TWsn the Presi dent of the United States possesses, as Commander-in-Chief of the army and .navy, military authority of,1.a?ye,rylivigh,, apd perhaps a >vWy undefined charac-.' ter, which is to* be exercised by him or by those who represent him at the head of the army; and that is a law which is regulated by. that international code which governs the civilized nations of the world. Apart from martial law, in the sense of law administered by a court-martial, and the military power exercised by the President as Commander-in-Chief of the Army and Navy,T know of np'suoh thing as martial law in this country. It has no existence. It has none in England. It has been declared by the very highest authorities that there, can be.no such thiug as martial 'law in that sense in England. Martial law is indeed no law at all. It is the absence of all law. You may talk about it in a • military despotism like that of France, but it can have no existence in this country. I warn, gentlemen, then; against claiming for the Presidentthe power of making these arrest's under any such notion as that of martial law. No, sir ; he has thepower to make these, arrests by this clause in the Constitution, or he has usurped an authority which does not belong to him, and every individual w(ho has been concerned in nJaking these arrests is liable both to -a civil and a criminal prosecution. . Mr. President, there has been one attempt, and but one, made since the Con stitution was adopted to induce 'Congress to suspend, the privileg&'of the writ of habeas corpus. In 1807 Mr. Jefferson sent a message to Congress intimating that certain individuals supposed to be implicated in t'he> conspiracy of Aaron Burr had been discharged upon habeas corpus, leaving it tp be inferred, for he did not say so in express terms, Jthat 'he desired' the " privilege of the writ to be suspended ; and thereupon, although there Was no rebellion, nor anything that could be tortured mito the idea of rebellion, the Senate, in secret session, passed a bill suspending the .privileges 'of'* the habeas corpus^ act. But when that bill went down to the lower- Hsouse it was rejected by '113 to 19 in its fa vor. What the. grounds of this 'rejection 'were do not appear. It may have been because the House of "Representatives supposed that the case was one which did not warrant the exercise of the power ; or it may have been upoti thegjound that they, did not possess this power themselves. • How extraordinary that^Mr. Jefferson should have1 been the man to have invited an exercise df this power by Congress — Mr. Jefferson, who had always insisted that the writ of habeas corpus .should never be suspended under any circumstances — Mr. Jeffersonj.who'bad always insisted that the writ of habeas corpus ought to be considered of eternal and imwratahle obligation, and 'that under no circumstances should it ever be suspended; This was in keeping with has peculiar views. ¦ The truth is Mr. Jeffersbn had no great objection to a rebellion. In fact, he declared upon one aecasion that he thought there ought to be a rebellion ifl every country at least once in every twenty years, He thought it would have the effect of purifying the political atmosphere, and letting out the bad blood of a nation. Even Shay's rebellion, which preceded Afl. adoption of the Con stitution, and which almost ' destroyed a)l civil government in Massachusetts, had no terrors in his eyes. Had Mr. Jefferson lived to see this day I think he would have been satisfied that such a rebellion as this ought not to occur more than once in the lifetime of anatipn. Mr. President, unless there be a power conferred upon the Executive to sus pend the privilege of the writ of habeas corpus in cases Ofrebellion or invasion then our Constitution- presents the only instance in the history of the world in which no provision has been made for a ease of th?s kind. No constitution of government, ancient or modern, can be found in which there is not some power reserved for an emergency like this. Whit people were ever more jealous of 12 their liberties than were the Roman people? ! They hated kingly authority, and they had a right to hate it. " Oh ! you and I have heard our fathers nay, There was a Brutus once, that would -have brook'd The eternal devil to keep his state in Borne, As easily as a king," i And this is but a true expression, of the sentiment of that people; and yet their constitution provided for the appointment of a dictator at a time like this, whose business it should be to see that the republic suffered. "no detriment. This question has been much discussed of late," and various are the opinions that have been expressed in relation to it. I do not propose to go into an ex amination of these various and conflicting opinions; but I think I am justified in saying that the weight of authority is on the side of that position which I have assumed. i There is one name, the, authority of which upon this occasion I desire to invoke, because the individual to whom I iallude has brought to bear upon the discussion of this question a degree of exhausting labor and research .Which would give to his opinions Upon any, subject very great weight and importance. I allude to Horace Binney,'of PhiIadelphia--c? much importance; to these clamors; Lam afraid it has sometimes been thought that they have contributed nolittle to the result of some of the recent elections. Sir, I do pot believe it. I do not believe that these arrests have had, the slightest effect upon the result of those elections. Wfyy, sir, what is it that those who are opposed to' the Ad ministration do not clamor about.; If these arrests bad not been made, they would only have been furnished with one less , topic for popular declamation, Every power which the Administration has attempted to exercise for the pur pose of crushing this rebellion has, with a certain class of men, met only from the' first with determined, malignant opposition. . . ... , .So far as these arrests are concerned, while I am willing to admit that mis takes have been made with regard to them, as mistakes must have been made, yet if any fault is to be found, if any complaint is to be made against this Ad ministration, it is that they have not made as many arrests us they ought to have made. I believe that affthe power with which the Constitution has clothed the President of the United States had only been exerted in the first instance with vigor and energy and fearlessness, the probability is that much blood and much treasure might have been saved to the nation. Mr. President, I have already occupied more of the time of the Senate than I should have done, and I fear that I have exhausted their patience in the dis- 13 cussion of what may seem to some to be a dry question of law ; but I am not willing to take my seat without troubling the Senate with a few remarks in reference to topics connected, I admit, more, particularly with the State which I inpart represent. I hpld in my hand a series of resolutions adopted by the Democratic State Convention of New Jersey, on the 4th day of September, 1862, and I desire for a moment to call the attention of the Senate to a few of these resolutions : Whereas, the Democracy of New Jersey have again assembled in conventi6h to exercise the right of freemen to nominate a candidate for the highest office in the gift of the people; and whereas we hold, that popular conventions may alone rightfully proclaim the tenets of the party, therefore, 1. Resolved', That deploring the demoraii'iing tendency of the higher law teaching of the Kepublloan parly, wefeel impelled to reiterate our faith in the doctrine that constitutional law is1 the only true basis of executive action in peace or war. . 2. Resolved, That in the present exigencies of the Country we extend to the national Administration our most cordial support fpr the speedy, suppression, of the rebellion by all oonstitutional means, and that the party stands, as it has ever stood since the formation of the Government, for the Union, the Consti tution, and enforcement of Hie laws. . ¦ ¦ i. & $fs°tocdi That as in establishing the Constitution the people reserved to themselves all powers not delegated to the Government,1 therefore all assumptions of power by the Administration, whether in the suspension of the writ of habeas corpus, arrests and imprisonment without due course of law, or restrict tions of the freedom of speech and of the press, are dangerous infringements of th6 constitutional rights of the peaple, onlyto be patiently borne by'the hopeless serfs 'of an irresistible despotism. 4. Resolved, That while we enter, our solenin, protest against the reckless extravagance, infamous pec ulation, and political outrages of which the party in power is guilty, and while we deprecate the horrors of the civil conflict now raging, we still hold Jt.our duty to advocate the use of every constitutional' means to the extent of the full power of the Government for the suppression of the rebellion, the vindica tion of the authority of the Constitution as it is, and the restoration of the Union as it was. 6., Resolved, That we entirely regret and abhor the idea that as an object of the present civil war any purpose of emancipation of the slaves shall be thereby promoted or at all regarded ; and that the Ian-, guage recently used by the Washington Republican, that *> ttidffarce of restoring the Union of the States is about. played out," is utterly, infamous, and deserving of,, as it will receive, the most solemn and severe condemnation of all true patriots. Mr., President, I will read no more of these, resolutions. It is very manifest that ,the, only war which these men suppose themselves to be engaged in is a war against the Administration. There is not one solitary; resolution in the whole series which looks to the causes of this rebellion, .or which expresses the slightest resentment or indignation against those who are the wicked authors of it. Now, sir, I say this is a melancholy spectacle : That at a time like this, when we are struggling for our very existence as a; nation, a party should be found whose sole business would seem tp be to embarrass, in every possible way, the administration of the Government. But, sir, it was not to the char acter Of these resolutions generally that I meant to call the attention of the Senate; it was to that one more especially which points to the subject of slavery, It is very manifest what these gentlemen understand by the "consti tutional means" which they think ought alone to be employed for the purpose, of putting down this rebellion. It is perfectly clear that the Democratic con-t I vention of New Jersey meant to say that they regarded with abhorrence any attempt to interfere with slavery, no matter how necessary such interference might be for the purpose of suppressing this rebellion. And that resolution prompts me to submit to the Senate a few remarks in reference to this question of slavery in connection with this rebellion. , That these gentlemen do not represent the sentiments of the people of New Jersey now, in their views with regard to slavery, I hope and believe; but if they do, I can only say that such sentiments are not in unison with the tradi tions,' or the teachings', of the early history of our State. The history of New Jersey in connection' with slavery is, I think, a beautiful one; and its record is' so fair and so pure that it is deeply to be regretted that anything should now occur- to blot or deface it. New Jersey has,, from the- earliest period of her "history, been an anti-slavery State. It was remarked by the Scotch historian,- Grahame, that slavery never existed in so mild a form as it did in our State' during its colonial history. Slavery was foreedupon New Jersey, as it was forged into the other colonies, by the mother country. One of the first instruc- tipnsi.that was ever given to Lord Gornbuiiyy our first royal Governor, was, that u every means should, be* taken, to facilitate the. operations of the African Slave Gpmpany. In the Convention that formed the Constitution of the. United States; New Jersey was represented by as able a body of rtlfen as were to be found in 'that assembly, headed by Judge Paterson,. who for many 'years subsequent to the adoption of the Constitution graced and adorned'vhe bench of the Supreme Court of the United States. The New. Jersey delegates in .that Convention voted, throughout against every concession made to slavery; They did;'it upon; principle and upon conviction; They .voted ag^hst slave representation. J'uidgo'J'at^rsbn made one, of. the ablest- speeches that was made upon that question." He took the ground; that , if, slaves were property, as, they were claimed .to ..be by the South,ithen slaves had no more 'right to be represented in Congress, than' any Other species of pro perty. They opposed the continuance of' the African .slave trade. They never ¦tyqi^ COtrSentby their vote to prolong, that. idfajfhbuB traffic for a day or fp'r an hour; ., That was the course they pursued, in;the Convention.. They were overruled. by their sister States ; but they acquiesced in the compromises; of the Constitu tion and from, that day to this New jersey- has been one of themost oonserva- ^tive'States in theUnibnV While opposed to these concessions in favor of slavery,, New Jersey hasever- been, ready to1 stand by the compromises of the Constitu tion ; and she; has ever, set her face against every attempt to interfere with slavery, directly, or indirectly, inthose States' whete'it existed by law, I Mt# never known an abolitionist in the State of New Jersey. There may have been s«eh, but I have never met- with them. And yet she has always been an anti- slavery State ; her sentiment on J that subject has always been declared' until now in a way not to be mistaken. ' When Missouri applied for admission into the Union as a slave State, New Jersey took the lead in resisting her application. The first meeting that was evfer held in Opposition to the admission of Missouri was held in the city of Ttenton, and it was attended by both political' parties. Democrats and Fede ralists vied with each other in their zeal' and in their determination to oppose' the admission into the Union of another slave State. That meeting was' fol lowed by meetiilgsiih Philadelphia,' and in Boston, and in New York, and even iin Baltimore,, where a meeting was held presided over by the mayor of the city, which adopted similar resolutions, The Legislature of New Jersey soon con vened. That Legislature with entire unanimity, passed a series of resolutions declaring their unalterable' hostility to the admission of any new slave State , into this Union'; and those resolutions were followed by- the adoption of similar resolutions in afrrips't everyone of the free States, declaring that under no circumstances would they ever consent to the admission' of another slave State into thi'S Union.' But notwithstanding all this, Missouri was admitted' into the- Union as a slave State, and New Jersey again acquiesced. Sir, in 1850, New Jersey,; althpugju reluctantly, acquiesced in the compromise;, measures which were then, adopted, the fugitive, slave law and all, although drugged as that measure was so as to make jt as offensive and distasteful as possible. She accepted them as a compromise forth© sake of. peace and, foB, the sake of the Union. And yet, Mr. President there is a party now in the State Of New Jersey who1 seem to me to embrace every ^opportunity of declaring' themselves the apologists of slavery, and who, so far as youcanjudge from their public resolutions and declarations,: are wholly unfiling that- slavery should be interfered with in the slightest degree, even although. 'such interference may be absolutely necessary im Order to subdue 6his wicked rebejliom Now, sir, I am not an abolitionist: 15 Inever have had any sympathy with that party who call themselves aboli tionists. ¦',..„: The distinction which separates the. abolitionist front the Republican in my estimation is this: the, abolitionist , makes the destruction of slavery the end ; we make it the. means to an end. We go for preserving the Union at all hazards, let it cost what it,, may.; the abplitionisfj goes for the destruction; of slavery, np matter what the consequences of such,, destruction may be. The language of the President with' regard, to,, this matter is the . language upon Which we are willing to stand, !or fall. If the destruction of slavery is the only, means of saving the Union, we are for. destroying, slavery ; but if the destruc tion of slavery would involve .the destruction, of the Union, we are opposed to, ,1fe..'.'^,k^e Ii°°k uP°n slavery .as being agreat social, political, and mpr§l evil,, yet it is not the only evil that, exists, and the destruction, of the Union wpuld; involve evils infinitely more serious , th'an those, which, are connected with sla very ; and therefore if T supposed, that the^best means of preserving this Union, was to suffer slavery to exist, I should be the last man. in the worjd toiinte'rfer^ with it directly or indirectly. < Mr. President, I have faith' in the }ssue of this great struggle in which we. are; engaged ; and never during the^ajkesfchpur widen has marked its progress, has my confidence ever for one moment, abated. Sir, if I supposed it was possible that this country was doomed tP parish in this struggle, I should begin to lose my^confidence in the existence of a' power which superintends and presides over the destinies of the world. There are1 circunistances connected with our strug gle here Which remind us very forcibly of. the struggle that'took place in Eng-' lktid more than two centuries' ago. That was a struggle against royalty ; this i&-a' struggle against slavery ; and, sir, there' are some striking circumstance? 'of. resemblance between the two ; for history is always''reprbducing itself. The object of those who were struggling for liberty in England was to Con fine the royal power within constitutional bounds, just as the object which the Republican party in this country have had is to confine slavery within constitu tional bounds. We never were disposed to interfere with it in the States where it existed, but we always desired to confine it within those bounds allotted to it by the Constitution. But with the progress of the civil war in England it be came perfectly manifest that it was necessary to do something more than to confine the royal authority within constitutional bounds. In order to preserve the liberties of the people, it became necessary to destroy it altogether. No peace could be made with it ; the wounds of deadly hate had pierced so deep that no true reconcilement could be hoped for. And, sir, with us it looks as if this power of slavery, which at first it was only intended to confine within its constitutional bounds, will have to be treated as the power of royalty was treat ed in England. There were, during that struggle in England, dark and dreary days, when almost every man was ready to despair. And yet. there were always noble, trusting spirits, who never abated one jot of heart or hope. Among these was one whose name every lover of freedom as well as every lover of genius1 will always delight to honor. I mean John Milton. While there Were those who argued that the state of things in England betokened degeneracy and decay, Milton* declared that they were but casting off the old and wrinkled skin of corruption ' and slavery ; that they were destined to outlive these pangs, and to wax young again, entering upon a glorious career of truth and prosperous virtue ; and then he breaks out into that sublime and glorious passage which I have so often called to mind, and loved to repeat, as not inapplicable to , our own condition : "Methinks," said he, "I see in my mind a noble and puissant nation rousing herself like a strong man after sleep, and shaking her invincible locks. Me thinks I see her as an eagle mewing her mighty youth, and kindling her un- 16 YALE UNIVERSITY LIBRARY 3 9002 08937 3907 dazzled eyes at the full mid-day beam ; purging and unsealing her long abused sight at the fountain itself of heavenly radiance ; while the whole noise of tim orous and flocking birds, with those also that love the twilight, flutter about, amazed at what she means, and in their envious gabble prognosticate a year of sects and schisms." Mr. President, this glorious Union, this noble Constitution will .not be des troyed. We shall emerge from this contest— I know it, I believe it — we shall emerge from this contest a purer, a nobler, a freer, a more united, a more happy people than we ever were before. I rejoice that this conflict has come. ^ It must have come sooner or later, and it never could have come at a better time than this. I believe most religiously that the Very disasters and reverses we have sustained in the progress of this contest have been sent by a merciful Providence for our good, and are intended to render the victory when it comes more lasting, more thorough, and more complete. Oh, what a noble contest is that in which we are engaged ! No muse of fire that ever ascended the highest heaven of invention can imagine anything more grand or more august. It is a contest for law, for order, for civilization, for Christianity, for free institutions here and everywhere, now and forever. Let this experiment of free govern ment fail, and when may we ever hope that another shall be successful ? Mr. President, we cannot fail. There is no instance in. the history of the world of a nation being suffered to perish in its fresh and early youth. Nations have risen and matured and decayed, but no nation like ours has ever been suffered to perish in the morning of its life, To use the beautiful imagery of the Bible, our sun will not be permitted to go down while it is yet day ; we shall continue to be a beacon light to illumine; the nations of the world,:and to beckon them on in their path to freedom.