H. OF R.

Suspension of the Writ of Habeas Corpus.

JANUARY, 1807.

respects the Monarch, it is one of the jura prerogativa, a writ of prerogative; but it is not considered as calculated to increase the power of the King, or the splendor of the throne; in its origin and true character it is viewed as a prerogative, exercised by the King, or those authorities to whom his judicial powers are supposed to be delegated, only for the purpose of securing the Constitutional rights of the subject, and restraining the invasion of those rights. As it respects the subject, it is a writ of right, and is emphatically called, by English writers, a writ of liberty.

By the provisions of the famous statute of Charles II., which has even been called a second magna charta, its privileges are guarantied to all British subjects at all times. An eminent English author, and the most popular writer upon subjects of legal science, considers its suspension as the suspension of liberty itself; declares that the measure ought never to be resorted to but in cases of extreme emergency; and says that the nation then parts with its freedom for a short and limited time, only to resume and secure it forever. Hence, he compares the suspension of the habeas corpus act in Great Britain to the dictatorship of the Roman Republic.

suprema. And is this a crisis of such awful moment? Is it necessary, at this time, to constitute a dictatorship, to save the people from themselves, and to take care that the Republic shall receive no detriment? What is the proposition? To create a single Dictator, as in ancient Rome, in whom all power shall be vested for a time? No; to create one great Dictator, and a multitude, an army of subaltern and petty despots; to invest, not only the President of the United States, but the Governors of States and Territories, and, indeed, all persons deriving civil or military authority from the supreme Executive, with unlimited and irresponsible power over the personal liberty of your citizens. Is this one of those great crises that require a suspension, a temporary prostration of the Constitution itself? Does the stately superstructure of our Republic thus tremble to its centre, and totter towards its fall? Common sense must give a negative answer to these questions. What are the facts? Is it, indeed, a case of rebellion? We are officially informed that rebellion has reared its hydra front in the peaceful valleys of the West. But we are also informed by the Executive that treason has no prospect of success; that the fugitives from the Ohio, and 'their associates from Cumberland, cannot threat- But objectionable as the bill upon the table is 'en serious danger even to the city of New Or-in point of principle, it is, if possible, still more ob'leans." Not a single city, still less a Territory jectionable in point of detail. It invests with the or a State, is considered in danger; and the Ex-power of violating the first principles of civil and ecutve, not only possesses all the information which has been communicated to us, but much more, for we are informed that the communication has been made under the reservation contained in the resolution requesting it, and of course all the facts in the knowledge of the Executive, which are decided to be improper for disclosure at this time, have been kept back. And the Executive, possessing all this information, assures us that the public safety is not endangered. Can we, under these circumstances, consent to the investiture of dictatorial powers in that department of the Gov-field of power is here opened, in which Executive ernment which thus assures us that all is safe? It would be contrary to the spirit of the Constitution.

But we shall be told that the Constitution has contemplated cases of this kind, and, in reference to them, invested us with unlimited discretion. When any gentleman shall advance such a position, we, who advocate the rejection of the bill, will meet him upon that ground, and put the point at issue. We contend that the framers of the Constitution never contemplated the exercise of such a power, under circumstances like the present; and that the Constitution itself, instead of authorizing, has prohibited such discretion, unless in an extreme case. And can any member lay his hand upon his heart and say, that the present is a case of that description? He who cannot do this must, with us, consider the proposed measure as unconstitutional.

Let us pay a little attention to the nature and character of the writ of habeas corpus. It has its origin in Great Britain, and is there considered in two great points of view, as it respects the Monarch, and as it respects the subject. As it

political liberty, not only the supreme Executive, and the Executives of individual States and Territories, but all civil and military officers who may derive any authority whatever from the Chief Magistrate. And it extends the operation of the suspension of the privileges of the habeas corpus, not only to persons guilty or suspected of treason, or misprision of treason, but, to those who may be accused of any other crime or misdemeanor, tending to endanger the "peace, safety, or neutrality," of the United States! What a vast and almost illimitable

discretion may wander at large and uncontrolled! A vast and dangerous scene of power, indeed! It gives the power of dispensing with the ordinary operation of the laws to a host of those little great men, who are attached to every Government under heaven. I wish not to reflect upon any of those subordinate officers who may be employed by the Government of my country.

But no one will doubt that, in times of alarm and danger, many men will be clothed with the functions of office, who are incompetent to the discreet exercise of such boundless discretion. I can never wish to see such persons invested with the means of aiming at the heads of their private enemies, or other innocent and unoffending citizens, the thunderbolts of public indignation, or scorching them with the lightning of public susspicion-says the poet :

"Could great men thunder, Jove would ne'er be quiet, For every petty pelting officer

Would use his heaven for thunder."

Let us again ask for evidence of the necessity of this measure? Certainly none can be produced, for we are informed, from the first authority, that

Suspension of the Writ of Habeas Corpus.

Suspension of the Writ of Habeas Corpus.

JANUARY, 1807.

Suspension of the Writ of Habeas Corpus.

It is too great for me, as an individual member, to bear. I shall, therefore, vote for this bill, under the impression that it will not have the injurious effects that some gentlemen seem to apprehend; and that it will only more effectually consign the guilty into the hands of justice.

H. OF R.

setts, can any one deny that this is a rebellion? It may perhaps be, but I think it does not deserve the name of a rebellion; it is a little, petty, trifling, contemptible thing, led on by a deperate man, at the head of a few desperate followers: a thing which might have been dangerous, if the virtue Mr. R. NELSON.-As the motion to reject the of the people had not arrested and destroyed it. bill meets my most hearty approbation, and as I But admit that it is a rebellion; will every rebellion consider it involving a great national question, I justify a suspension of the writ of habeas corpus ? cannot reconcile it to my duty to give a silent vote The Constitution says, "the privilege of the writ on it. I shall, however, in order to avoid an un-of habeas corpus shall not be suspended, except necessary consumption of the time of the House, offer my remarks in as concise a compass as possible. I shall first consider the nature of the writ of habeas corpus; afterwards examine its effects, not only on the individual, but on the community at large; taking into view the mode of proceeding under it, to show, as I conceive, that no danger can ensue, on the refusal to pass this bill.

What is a writ of habeas corpus ? It is a writ directing a certain person in custody to be brought before a tribunal of justice, to inquire into the legality of his confinement. If the judge is of opinion that the confinement is illegal, the person will of course be discharged; if, on the contrary, from the evidence, he shall be of opinion that there is sufficient grounds to suspect that he is guilty of offence, he will not be discharged. Now, to me, it appears that this is a proper and necessary power to be vested in our judges, and that a suspension of the writ of habeas corpos is, in all cases, improper. If a man is taken up, and is denied an examination before a judge or a court, he may, although innocent, in this case, continue to suffer confinement. This, in my opinion, is dangerous to the liberty of the citizen. He may be taken up on vague suspicion, and may not have his case examined for months, or even for years. Would not this bear hard upon the rights of the citizen?

Let us turn over a leaf, and see how the Government stands. If the person accused is legally committed, or if it shall be proved that he has committed any offence, the judge will say that he shall not be released. If he has committed an offence, there can be no grounds for this suspicion, because, without such suspension, he will not be discharged, because it does not follow that, inasmuch as a man has a right to demand that he be brought before a judge by a writ of habeas corpus, he shall therefore be discharged. He is only bound to examine him, and if he finds there is strong reason to believe he has committed a crime, he may remand him to confinement.

when, in cases of invasion or rebellion, the public safety shall require it." Does, then, the public safety require this suspension? Does the Constitution justify it? And, under present circumstances, confining a man in prison without a cause. There is no danger, the enemy is not at our door; there is no invasion; and yet we are called upon to suspend the writ of habeas corpus. This precedent, let me tell gentlemen, may be a ruinous, may be a most damnable precedent-a precedent which, hereafter, may be most flagrantly abused. The Executive may wish to make use of more energetic measures than the established laws of the land enable him to do; he will resort to this as a precedent, and this important privilege will be suspended at the smallest appearance of danger. The effect will be, that whenever a man is at the head of our affairs, who wishes to oppress or wreak his vengeance on those who are opposed to him, he will fly to this as a precedent; it will truly be a precedent fraught with the greatest danger; a precedent which ought not to be set, except in a case of the greatest necessity; indeed, I can hardly contemplate a case in which, in my opinion, it can be necessary.

In my opinion, this is a measure which ought never to be proposed, unless when the country is so corrupt that we cannot even trust the judges themselves. This, I consider the cause of the frequent suspension of this privilege in England. Whenever the whole mass of society becomes contaminated, and the officers of the judicial court are so far corrupted as to countenance rebellion, and release rebels from their confinement, it may be then time to say, they shall no longer remain in your hands; we will take them from you. But I apprehend there is no such danger here, and I repeat it, we are at once creating one of the most dangerous precedents, and passing one of the most unjust acts that was ever proposed.

Mr. SLOAN.-At the same time that I express my purpose to vote on the same side with the This is a writ of right, which ought to exist gentleman from Maryland, I shall take the liberty under all Governments on earth. What right? of assigning very different reasons for my vote The right of being examined by the tribunals of from those offered by him. The gentleman from his country, to determine whether there is any Virginia has mentioned two preceding insurrecground for the deprivation of his liberty. Is this tions, which he considers of much greater magnia right which ought to be suspended merely to tude than this. I am of a different opinion. Comgratify the apprehensions of gentlemen? I think pared to this, I consider them as only a drop to not. The framers of the Constitution have said, the bucket. For a moment, let me ask the atten"the privilege of the writ of habeas corpus shall tion of gentlemen to those insurrections, or as I 'not be suspended, except when, in cases of inva- think they might, with more correctness, he term'sion or rebellion, the public safety shall require | ed, oppositions to Government. In consequence 'it." Well, but, says the gentleman from Massachu- of certain citizens thinking themselves aggrieved

H. of R.

Suspension of the Writ of Habeas Corpus.

JANUARY, 1807.

by certain acts, in which they have been, in some measure, justified by their subsequent repeal, a handful of people raised in opposition to their execution. What analogy do those oppositions bear to this rebellion? I consider the late or present conspiracy to be of greater magnitude than any we know of in history. Under what author-plete the suppression. A suspension of the habeas ity has it been created? Under that of a man of great abilities and experience, who states that he expects encouragement from foreign nations. I do not pretend to say that this is a fact; but what has he done? Has he not drawn resources from every part of the Union? I, therefore, consider it of great magnitude, and it is certainly excited against the best Government on earth, un-require that they should be detained until the der which the people enjoy the greatest happiness. I shall, however, vote against the bill, under the belief that we may confidently rely on the love and affection of the people for their Government, to which we are already probably indebted for its suppression. Had this measure been brought forward a month or six weeks ago, I should have voted for it.

Mr. BIDWELL said, although he was not satisfied of the necessity of passing this bill, he was not prepared to reject it, in its present stage. As it had received the sanction of the Senate, he was disposed to treat it as a subject worthy of discussion and deliberation, by referring it, in the usual course, to a Committee of the whole House.

spiracy; for by the vigilance and energy of our Executive Government, seconded and supported by the exertions of particular States and Territories and the army, this deep laid conspiracy was already in a good measure suppressed, and he trusted the means now in operation would comcorpus could not be necessary, except for the detection and conviction of the conspirators. A thorough investigation ought undoubtedly to be made. If any persons, concerned in the conspiracy, were arrested in situations which precluded an immediate production of such evidence, as would warrant their confinement, justice would proper evidence could be procured; but in the mean time they might be discharged by virtue of a habeas corpus; for, though he agreed with the gentleman from Maryland (Mr. NELSON) in the importance and utility of this writ, he could not subscribe to the doctrine which he understood that gentleman to maintain, that it would entitle a person to a discharge only for causes of irregularity in the arrest. Want of legal evidence to show, by oath or affirmation, probable cause for detention, would be a ground of discharge. In ordinary cases, indeed, the release and escape of a guilty person, for such want of evidence, was esteemed a smaller evil, than a denial of the common privilege. If it were so, in respect to this conspiracy, there was, in his opinion, no good reason for passing this bill. That was a point, which appeared to him worthy of some deliberation.

Before the passing of any bill of this nature, the House ought to have satisfactory proof that a rebellion in fact existed (for there was no pretence of an invasion) and that the public safety required a suspension of the privilege of habeas corpus. It had been mentioned, in the debate, that in By the terms of the Constitution, both of these the whole history of our Government, notwithpre-requisites must concur, to authorize the meas-standing two insurrections, the habeas corpus had, ure. The first inquiry would naturally turn upon in no instance, been suspended. It was true. the existence of a rebellion. On that point he had But an instance had been cited from one of the no doubt. To constitute a rebellion, in the sense States. During the insurrection in Massachusetts of the Constitution, he did not think it necessary there was such a suspension, in pursuance of a that a battle should have been fought, or even a Constitutional provision; and it was generally single gun fired. If troops were enlisted, assem- acknowledged to have been a necessary and salubled, organized, and armed, for the purpose of ef- tary measure. He had never understood that it fecting a treasonable object, it amounted to actual was abused, or that it was considered by the peorebellion. Such was the existing state of things. ple of that State a dangerous example. It was The public notoriety of the fact was, perhaps, suf- justified by the occasion. But it did not, thereficient evidence for the Legislature to act upon, fore, follow that a similar suspension would be if necessary; but they had also the official state-justifiable on this occasion. That must depend ment of the President to that effect. He had, on the present state and circumstances of the natherefore, no doubt of the existence of a rebellion, tion. Although a rebellion existed, he was not and that, too, of a more wanton and malignant | character than any insurrection which had heretofore been raised against our Government; for it had not been occasioned by any grievances, real or imaginary, but must have originated in motiyes of personal ambition or some more unworthy passion.

An existing rebellion, however, even of this aggravated description, was not alone sufficient to justify a suspension of the writ of habeas corpus. To bring it within Constitutional justification, it must be required by the public safety. That was a matter of opinion, rather than of fact. He was convinced that the proposed suspension was not requisite for the purpose of suppressing the con

satisfied that the public safety required so strong and severe a measure. But, as it was an important question, on which the House had not yet taken time to deliberate, he was willing that the bill should go, according to the usual course of proceeding, to a Committee of the Whole; and therefore, he should not give his vote for rejecting it in the present state.

Mr. J. RANDOLPH.-I shall give my vote in a very different manner from the gentleman who has just sat down. I was extremely happy to witness the very prompt and decided opposition this measure received in the House, and from the quarter whence that opposition originated; and 1 subscribe with great pleasure to the sound Con