February 23, 1863
Ohio congressman Clement L. Vallandigham attended the final session of the 37th Congress as a lame duck after having been defeated for reelection in October 1862. A leader of the “Peace Democrats” who opposed emancipation and the continued prosecution of the war, Vallandigham gave a lengthy speech in the House on January 14 calling for an armistice, the withdrawal of Union troops from the seceded states, and negotiations aimed at peaceful reunion. He spoke again in February as the House debated the recently introduced conscription bill. Under its terms, male citizens (and immigrants applying for citizenship) between twenty and forty-five were subject to conscription if voluntary enlistments failed to fill the recruitment quota for their district. Men who were selected by lottery to be drafted could avoid service by hiring a substitute or by paying a $300 commutation fee. The bill passed the Senate, 35–11, and the House, 115–48, and was enacted on March 3, 1863.
Mr. VALLANDIGHAM said:
Mr. SPEAKER: I do not propose to discuss this bill at any great length in this House. I am satisfied that there is a settled purpose to enact it into a law, so far as it is possible for the action of the Senate and House and the President to make it such. I appeal, therefore, from you, from them, directly to the country; to a forum where there is no military committee, no previous question, no hour rule, and where the people themselves are the masters. I commend the spirit in which this discussion was commenced by the chairman of the Military Committee, [Mr. OLIN,] and I do it the more cheerfully because, unfortunately, he is not always in so good a temper as he was to-day: and I trust that throughout the debate, and on its close, he will exhibit that same disposition which characterized his opening remarks. Only let me caution him that he cannot dictate to the minority here what course they shall pursue. But, sir, I regret that I cannot extend the commendation to the gentleman from Pennsylvania, [Mr. CAMPBELL,] who addressed the House a little while ago. His speech was extremely offensive, and calculated to stir up a spirit of bitterness and strife, not at all consistent with that in which debates in this House should be conducted. If he or any other gentleman of the majority imagines that any one here is to be deterred by threats from the expression of his opinions, or from giving such votes as he may see fit to give, he has utterly misapprehended the temper and determination of those who sit on this side of the Chamber. His threat I hurl back with defiance into his teeth. I spurn it. I spit upon it. That is not the argument to be addressed to equals here: and I therefore most respectfully suggest that hereafter all such be dispensed with, and that we shall be spared personal denunciation and insinuations against the loyalty of men who sit with me here; men whose devotion to the Constitution and attachment to the Union of these States is as ardent and immovable as yours, and who only differ from you as to the mode of securing the great object nearest their hearts.
Mr. CAMPBELL. The gentleman will allow me—
Mr. VALLANDIGHAM. I yield for explanation.
Mr. CAMPBELL. Mr. Speaker, it is a significant fact that the gentleman from Ohio has applied my remarks to himself and others on his side of the House. Why was this done? I was denouncing traitors here, and I will denounce them while I have a place upon this floor. It is my duty and my privilege to do so. And if the gentleman from Ohio chooses to give my remarks a personal application, he can so apply them.
Mr. VALLANDIGHAM. That is enough.
Mr. CAMPBELL. One moment.
Mr. VALLANDIGHAM. Not another moment after that. I yielded the floor in the spirit of a gentleman, and not to be met in the manner of a blackguard. [Applause and hisses in the galleries.]
Mr. CAMPBELL. The member from Ohio is a blackguard. [Renewed hisses and applause in the galleries.]
Mr. ROBINSON. I rise to a question of order. I demand that the galleries be cleared. We have been insulted time and again by contractors and plunderers of the Government, in these galleries, and I ask that they be now cleared.
Mr. COX. I hope my friend from Illinois will not insist on that. Only a very small portion of those in the galleries take part in these disturbances. The fool-killer will take care of them.
The SPEAKER pro tempore. The Chair will have to submit the question to the House.
Mr. COX. I hope the demand will be withdrawn.
The SPEAKER pro tempore. The Chair will state, that if disorder is repeated, whether by applause or expressions of disapprobation, he will feel called upon himself to order the galleries to be cleared, trusting that the House will sustain him in so doing.
Mr. ROBINSON. I desire the order to be enforced now, and the galleries to be cleared, excepting the ladies’ gallery.
Mr. ROSCOE CONKLING. I was going to say that I hoped the order would not be extended to that portion of the galleries.
Mr. ROBINSON. The galleries were cautioned this afternoon.
Mr. JOHNSON. And it is the same men who have been making this disturbance now. I know their faces well.
Mr. VALLANDIGHAM. I think, Mr. Speaker, that this lesson has not been lost; and that it is sufficiently impressed now upon the minds of the audience that this is a legislative, and is supposed to be a deliberative, assembly, and that no breach of decorum or order should occur among them, whatever may be the conduct of any of us on the floor. I trust, therefore, that my friends on this side will withdraw the demand for the enforcement of the rule of the House.
Mr. ROBINSON. I withdraw the demand.
Mr. VERREE. I raise the point of order that members here, in debating questions before the House, are not at liberty to use language that is unparliamentary, and unworthy of a member.
The SPEAKER. That is the rule of the House.
Mr. VERREE. I hope it will be enforced.
Mr. VALLANDIGHAM. And I hope that it will be enforced, also, against members on the other side of the Chamber. We have borne enough, more than enough of such language, for two years past.
The SPEAKER. The gentleman from Illinois withdraws his demand to have the galleries cleared. The Chair desires to say to gentlemen in the galleries, that this being a deliberative body, it is not becoming this House, or the character of American citizens, to disturb its deliberations by any expression of approval or disapproval.
Mr. VALLANDIGHAM. The member from Pennsylvania [Mr. CAMPBELL] alluded to-day, generally, to gentlemen on this side of the House. There was no mistaking the application. The language and gesture were both plain enough. He ventured also, approvingly, to call our attention to the opinions and course of conduct of some Democrats in the State of New York, as if we were to learn our lessons in Democracy, or in anything else, from that quarter. I do not know, certainly, to whom he alluded. Perhaps it was to a gentleman who spoke not long since in the city of New York, and advocated on that occasion, what is called in stereotype phrase “the vigorous prosecution of the war,” and who, but two months previously, addressed assemblages in the same State and city, in which he proposed only to take Richmond, and then let the “wayward sisters depart in peace.” Now, I know of no one on this side of the Chamber occupying such a position; and I, certainly, will not go to that quarter to learn lessons in patriotism or Democracy.
I have already said that it is not my purpose to debate the general merits of this bill at large, and for the reason that I am satisfied that argument is of no avail here. I appeal, therefore, to the people. Before them I propose to try this great question—the question of constitutional power, and of the unwise and injudicious exercise of it in this bill. We have been compelled, repeatedly, since the 4th of March, 1861, to appeal to the same tribunal. We appealed to it at the recent election. And the people did pronounce judgment upon our appeal. The member from Pennsylvania ought to have heard their sentence, and I venture to say that he did hear it, on the night of the election. In Ohio they spoke as with the voice of many waters. The very question of summary and arbitrary arrests, now sanctioned in this bill, was submitted, as a direct issue, to the people of that State, as also of other States, and their verdict was rendered upon it. The Democratic convention of Ohio assembled on the 4th of July, in the city of Columbus, the largest and best ever held in the State, among other resolutions of the same temper and spirit, adopted this without a dissenting voice:
“And we utterly condemn and denounce the repeated and gross violation, by the Executive of the United States, of the rights thus secured by the Constitution; and we also utterly repudiate and condemn the monstrous dogma, that in time of war the Constitution is suspended, or its power in any respect enlarged beyond the letter and true meaning of that instrument.
“And we view, also, with indignation and alarm, the illegal and unconstitutional seizure and imprisonment, for alleged political offenses, of our citizens, without judicial process, in States where such process is unobstructed, but by executive order by telegraph, or otherwise, and call upon all who uphold the Union, the Constitution, and the laws, to unite with us in denouncing and repelling such flagrant violation of the State and Federal Constitutions, and tyrannical infraction of the rights and liberties of American citizens; and that the people of this State CANNOT SAFELY AND WILL NOT SUBMIT to have the freedom of speech and freedom of the press, the two great and essential bulwarks of civil liberty, put down by unwarranted and despotic exertion of power.”
On that the judgment of the people was given at the October elections, and the party candidates nominated by the convention which adopted that resolution, were triumphantly elected. So, too, with the candidates of the same party in the States of Wisconsin, Illinois, Indiana, Pennsylvania, New Jersey, and New York. And, sir, that “healthy reaction,” recently, of which the member from Pennsylvania [Mr. CAMPBELL] affected to boast, has escaped my keenest sense of vision. I see only that handwriting on the wall which the fingers of the people wrote against him and his party and this whole Administration, at the ballot-box, in October and November last. Talk to me, indeed, of the leniency of the Executive! too few arrests! too much forbearance by those in power! Sir, it is the people who have been too lenient. They have submitted to your oppressions and wrongs as no free people ought ever to submit. But the day of patient endurance has gone by at last. Mistake them not. They will be lenient no longer. Abide by the Constitution, stand by the laws, restore the Union if you can restore it—not by force; you have tried that and failed. Try some other method now—the ancient, the approved, the reasonable way—the way in which the Union was first made. Surrender it not now—not yet—never. But unity is not Union; and attempt not, at your peril—I warn you—to coerce unity by the utter destruction of the Constitution and of the rights of the States and the liberties of the people. Union is liberty and consent; unity is despotism and force. For what was the Union ordained? As a splendid edifice, to attract the gaze and admiration of the world? As a magnificent temple—a stupendous superstructure of marble and iron, like this Capitol, upon whose lofty dome the bronzed image—hollow and inanimate—of freedom is soon to stand erect in colossal mockery, while the true spirit, the living goddess of liberty, veils her eyes and turns away her face in sorrow, because, upon the altar established here, and dedicated by our fathers to her worship, you, a false and most disloyal priesthood, offer up, night and morning, the mingled sacrifices of servitude and despotism? No, sir. It was for the sake of the altar, the service, the religion, the devotees, that the temple of the Union was first erected; and when these are all gone, let the edifice itself perish. Never—never—never—will the people consent to lose their own personal and political rights and liberties, to the end that you may delude and mock them with the splendid unity of despotism.
Sir, what are the bills which have passed, or are still before the House? The bill to give the President entire control of the currency—the purse—of the country. A tax bill to clothe him with power over the whole property of the country. A bill to put all power in his hands over the personal liberties of the people. A bill to indemnify him, and all under him, for every act of oppression and outrage already consummated. A bill to enable him to suspend the writ of habeas corpus, in order to justify or protect him, and every minion of his, in the arrests which he or they may choose to make—arrests, too, for mere opinions’ sake. Sir, some two hundred years ago, men were burned at the stake, subjected to the horrors of the Inquisition, to all the tortures that the devilish ingenuity of man could invent—for what? For opinions on questions of religion—of man’s duty and relation to his God. And now, to-day, for opinions on questions political, under a free Government, in a country whose liberties were purchased by our fathers by seven years’ outpouring of blood, and expenditure of treasure—we have lived to see men, the born heirs of this precious inheritance, subjected to arrest and cruel imprisonment at the caprice of a President or a Secretary or a constable. And, as if that were not enough, a bill is introduced here to-day, and pressed forward to a vote, with the right of debate, indeed—extorted from you by the minority—but without the right to amend, with no more than the mere privilege of protest—a bill which enables the President to bring under his power, as Commander-in-Chief, every man in the United States between the ages of twenty and forty-five—three millions of men. And, as if not satisfied with that, this bill provides, further, that every other citizen, man, woman, and child, under twenty years of age and over forty-five, including those that may be exempt between these ages, shall be also at the mercy—so far as his personal liberty is concerned—of some miserable “provost marshal” with the rank of a captain of cavalry, who is never to see service in the field; and every congressional district in the United States is to be governed—yes, governed—by this petty satrap—this military eunuch—this Baba—and he even may be black—who is to do the bidding of your Sultan, or his Grand Vizier. Sir, you have but one step further to go—give him the symbols of his office—the Turkish bow-string and the sack.
What is it, sir, but a bill to abrogate the Constitution, to repeal all existing laws, to destroy all rights, to strike down the judiciary, and erect upon the ruins of civil and political liberty a stupendous superstructure of despotism. And for what? To enforce law? No, sir. It is admitted now by the legislation of Congress, and by the two proclamations of the President, it is admitted by common consent, that the war is for the abolition of negro slavery, to secure freedom to the black man. You tell me, some of you, I know, that it is so prosecuted because this is the only way to restore the Union; but others openly and candidly confess that the purpose of the prosecution of the war is to abolish slavery. And thus, sir, it is that the freedom of the negro is to be purchased, under this bill, at the sacrifice of every right of the white men of the United States.
Sir, I am opposed, earnestly, inexorably opposed, to this measure. If there were not another man in this House to vote against it, if there were none to raise his voice against it, I, at least, dare stand here alone in my place, as a Representative, undismayed, unseduced, unterrified, and heedless of the miserable cry of “disloyalty,” of sympathy with the rebellion and with rebels, to denounce it as the very consummation of the conspiracy against the Constitution and the liberties of my country.
Sir, I yield to no man in devotion to the Union. I am for maintaining it upon the principles on which it was first formed; and I would have it, at every sacrifice, except of honor, which is “the life of the nation.” I have stood by it in boyhood and in manhood, to this hour; and I will not now consent to yield it up; nor am I to be driven from an earnest and persistent support of the only means by which it can be restored, either by the threats of the party of the Administration here, or because of affected sneers and contemptuous refusals to listen, now, to reunion, by the party of the administration at Richmond. I never was weak enough to cower before the reign of terror inaugurated by the men in power here, nor vain enough to expect favorable responses now, or terms of settlement, from the men in power, or the presses under their control, in the South. Neither will ever compromise this great quarrel, nor agree to peace on the basis of reunion; but, I repeat it—stop fighting, and let time and natural causes operate—uncontrolled by military influences—and the ballot there, as the ballot here, will do its work. I am for the Union of these States; and but for my profound conviction that it can never be restored by force and arms; or, if so restored, could not be maintained, and would not be worth maintaining, I would have united, at first—even now would unite, cordially—in giving, as I have acquiesced, silently, in your taking, all the men and all the money you have demanded. But I did not believe, and do not now believe, that the war could end in anything but final defeat; and if it should last long enough, then in disunion; or, if successful upon the principles now proclaimed, that it must and would end in the establishment of an imperial military despotism—not only in the South—but in the North and West. And to that I never will submit. No, rather, first I am ready to yield up property, and liberty—nay, life itself.
Sir, I do not propose to discuss now the question of the constitutionality of this measure. The gentleman from Ohio who preceded me, [Mr. WHITE,] has spared me the necessity of an argument on that point. He has shown that between the Army of the United States, of which, by the Constitution, the President of the United States is the Commander-in-Chief, and the militia, belonging to the States, there is a wide and clearly marked line of distinction. The distinction is fully and strongly defined in the Constitution, and has been recognized in the entire legislation and practice of the Government from the beginning. The States have the right, and have always exercised it, of appointing the officers of their militia, and you have no power to take it away. Sir, this bill was originally introduced in the Senate as a militia bill, and as such it recognized the right of the States to appoint the officers; but finding it impossible, upon that basis, to give to the Executive of the United States the entire control of the millions thus organized into a military force, as the conspirators against State rights and popular liberty desire, the original bill was abandoned; and to-day behold here a stupendous conscription bill for a standing army of more than three million men, forced from their homes, their families, their fields, and their workshops; an army organized, officered, and commanded by the servant President, now the master dictator of the United States. And for what? Foreign war? Home defense? No; but for coercion, invasion, and the abolition of negro slavery by force. Sir, the conscription of Russia is mild and merciful and just compared with this. And yet the enforcement of that conscription has just stirred again the slumbering spirit of insurrection in Poland, though the heel of despotic power has trodden upon the necks of her people for a century.
Where, now, are your taunts and denunciations, heaped upon the confederate government for its conscription, when you, yourselves, become the humble imitators of that government, and bring in here a conscription act, more odious even than that passed by the confederate congress at Richmond? Sir, the chairman of the Military Committee rejoiced that for the last two years the Army had been filled up by voluntary enlistments. Yes, your Army has hitherto been thus filled up by the men of the North and West. One million two hundred and thirty-seven thousand men—for most of the drafted men enlisted, or procured substitutes—have voluntarily surrendered their civil rights, subjected themselves to military law, and thus passed under the command and within the control of the President of the United States. It is not for me to complain of that. It was their own act—done of their own free will and accord—unless bounties, promises, and persuasion may be regarded as coercion. The work you proposed was gigantic, and your means proportionate to it. And what has been the result? What do you propose now? What is this bill? A confession that the people are no longer ready to enlist; that they are not willing to carry on this war longer, until some effort has been made to settle this great controversy in some other way than by the sword. And yet, in addition to the one million two hundred and thirty-seven thousand men who have voluntarily enlisted, you propose now to force the entire body of the people, between the ages of twenty and forty-five, under military law, and within the control of the President as Commander-in-Chief of the Army, for three years, or during the war—which is to say “for life;” ay, sir, for life, and half your Army has already found, or will yet find, that their enlistment was for life too.
I repeat it, sir, this bill is a confession that the people of the country are against this war. It is a solemn admission upon the record in the legislation of Congress that they will not voluntarily consent to wage it any longer. And yet, ignoring every principle upon which the Government was founded, this measure is an attempt by compulsion to carry it on against the will of the people. Sir, what does all this mean? You were a majority at first; the people were almost unanimously with you, and they were generous and enthusiastic in your support. You abused your power and your trust, and you failed to do the work which you promised. You have lost the confidence, lost the hearts of the people. You are now in a minority at home. And yet, what a spectacle is exhibited here to-night! You, an accidental, temporary majority, condemned and repudiated by the people, are exhausting the few remaining hours of your political life in attempting to defeat the popular will, and to compel, by the most desperate and despotic of expedients ever resorted to, the submission of the majority of the people, at home, to the minority, their servants here. Sir, this experiment has been tried before in other ages and countries, and its issue always, among a people born free, or fit to be free, has been expulsion or death to the conspirators and tyrants.
I make no threats. They are not arguments fit to be addressed to equals in a legislative assembly; but there is truth—solemn, alarming truth—in what has been said to-day by gentlemen on this side of the Chamber. Have a care, have a care, I entreat you, that you do not press these measures too far. I shall do nothing to stir up an already excited people—not because of any fear of your contemptible petty provost marshals, but because I desire to see no violence or revolution in the North or West. But I warn you now, that whenever, against the will of the people, and to perpetuate power and office in a popular Government which they have taken from you, you undertake to enforce this bill, and, like the destroying angel in Egypt, enter every house for the first-born sons of the people—remember Poland. You cannot and will not be permitted to establish a military despotism. Be not encouraged by the submission of other nations. The people of Austria, of Russia, of Spain, of Italy have never known the independence and liberty of freemen. France, in seventy years, has witnessed seven principal revolutions—the last brought about in a single day by the arbitrary attempt of the king to suppress freedom of speech and of the press, and next the free assembling of the people; and when he would have retraced his steps and restored these liberties, a voice from the galleries—not filled with clerks and plunderers and placemen—uttered the sentiments and will of the people of France, in words now historic: “It is too late.” The people of England never submitted, and would not now submit, for a moment, to the despotism which you propose to inaugurate in America. England cannot, to-day, fill up her standing armies by conscription. Even the “press gang,” unknown to her laws, but for a time acquiesced in, has long since been declared illegal; and a sweeping conscription like this, now, would hurl not only the ministry from power, but the queen from her throne.
Sir, so far as this bill is a mere military measure, I might have been content to have given a silent vote against it; but there are two provisions in it hostile, both to the letter and spirit of the Constitution, and inconsistent with the avowed scope and purpose of the bill itself; and, certainly, as I read them in the light of events which have occurred in the past two years, of a character which demands that the majority of this House shall strike them out. There is nothing in the argument that we have no time to send the bill back to the Senate, lest it should be lost. The Presiding Officers of both Houses are friends of the bill, and will constitute committees of conference of men favorable to it. They will agree at once, and can at any moment, between this and the 4th of March, present their report as a question of the highest privilege; and you have a two thirds majority in both branches to adopt it.
With these provisions of the bill stricken out, leaving it simply as a military measure, to be tested by the great question of peace or war, I would be willing that the majority of the House should take the responsibility of passing it without further debate; although, even then, you would place every man in the United States, between the ages of twenty and forty-five, under military law, and within the control, everywhere, of the President, except the very few who are exempt; but you would leave the shadow, at least, of liberty to all men not between these ages, or not subject to draft under this bill, and to the women and children of the country too.
Sir, these two provisions propose to go a step further, and include every one, man, woman, and child, and to place him or her under the arbitrary power not only of the President and his Cabinet, but of some two hundred and fifty other petty officers, captains of cavalry, appointed by him. There is no distinction of sex, and none of age. These provisions, sir, are contained in the seventh and twenty-fifth sections of the bill. What are they? I comment not on the appointment of a general provost marshal of the United States, and provost marshals in every congressional district. Let that pass. But what do you propose to make the duty of each provost marshal in carrying out the draft? Among other things, that he shall “inquire into and report to the Provost Marshal General”—what? Treason? No. Felony? No. Breach of the peace, or violation of law of any kind? No; but “treasonable practices;” yes, TREASONABLE PRACTICES. What mean you by these strange, ominous words? Whence come they? Sir, they are no more new or original than any other of the cast-off rags filched by this Administration from the lumber-house of other and more antiquated despotisms. The history of European tyranny has taught us somewhat of this doctrine of constructive treason. Treasonable practices! Sir, the very language is borrowed from the old proclamations of the British monarchs some hundreds of years ago. It brings up the old, identical quarrel of the fourteenth century. Treasonable practices? It was this that called forth that English act of Parliament of twenty-fifth Edward III, from which we have borrowed the noble provision against constructive treason in the Constitution of the United States. Arbitrary arrests for no crime known, defined or limited by law, but for pretended offenses, herded together under the general and most comprehensive name of “treasonable practices,” had been so frequent, in the worst periods of English history that, in the language of the act of Henry IV, “no man knew how to behave himself or what to do or say for doubt of the pains of treason.” The statute of Edward III had cut all these fungous, toadstool treasons up by the root; and yet, so prompt is arbitrary power to denounce all opposition to it as treasonable that, as Lord Hale observes—
“Things were so carried by parties and factions in the succeeding reign of Richard II, that this statute was but little observed but as this or that party got the better. So the crime of high treason was, in a manner, arbitrarily imposed and adjudged to the disadvantage of the party which was to be judged; which, by various vicissitudes and revolutions, mischiefed all parties first and last, and left a great unsettledness and unquietness in the minds of the people, and was one of the occasions of the unhappiness of the king.”
And he adds that—
“It came to pass that almost every offense that was or seemed to be a breach of the faith and allegiance due to the king, was, by construction, consequence, and interpretation, raised into the offense of high treason.”
Richard II procured an act of Parliament—even he did not pretend to have power to do it by proclamation—declaring that the bare purpose to depose the king and to place another in his stead, without any overt act, was treason; and yet, as Blackstone remarks, so little effect have over-violent laws to prevent crime, that within two years afterwards this very prince was both deposed and put to death. Still the struggle for arbitrary and despotic power continued; and up to the time of Charles I, at various periods, almost every conceivable offense relating to the government, and every form of opposition to the king, was declared high treason. Among these were execrations against the king; calling him opprobrious names by public writing; refusing to abjure the Pope; marrying, without license, certain of the king’s near relatives; derogating from his royal style or title; impugning his supremacy; or assembling riotously to the number of twelve, and refusing to disperse on proclamation. But steadily, in better times, the people and the Parliament of England returned to the spirit and letter of the act of Edward III, passed by a Parliament which now, for five hundred years, has been known and honored as Parliamentum benedictum, the “blessed Parliament”—just as this Congress will be known, for ages to come, as “the accursed Congress”—and among many other acts, it was declared by a statute, in the first year of the fourth Henry’s reign, that “in no time to come any treason be judged, otherwise than as ordained by the statute of King Edward III.” And for nearly two hundred years, it has been the aim of the lawyers and judges of England to adhere to the plain letter, spirit, and intent of that act, “to be extended,” in the language of Erskine in his noble defense of Hardy, “by no new or occasional constructions—to be strained by no fancied analogies—to be measured by no rules of political expediency—to be judged of by no theory—to be determined by the wisdom of no individual, however wise—but to be expounded by the simple, genuine letter of the law.”
Such, sir, is the law of treason in England to-day; and so much of the just and admirable statute of Edward as is applicable to our form of government was embodied in the Constitution of the United States. The men of 1787 were well read in history and in English constitutional law. They knew that monarchs and Governments, in all ages, had struggled to extend the limits of treason, so as to include all opposition to those in power. They had learned the maxim that, miserable is the servitude where the law is either uncertain or unknown, and had studied and valued the profound declaration of Montesquieu, that, “if the crime of treason be indeterminate, that alone is sufficient to make any Government degenerate into arbitrary power.” Hear Madison, in the Federalist:
“As new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other, the convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.”
And Story, not foreseeing the possibility of such a party or Administration as is now in power, declared it “an impassable barrier against arbitrary constructions, either by the courts or by Congress, upon the crime of treason.” “Congress;” that, sir, is the word, for he never dreamed that the President, or, still less, his clerks, the Cabinet ministers, would attempt to declare and punish treasons. And yet what have we lived to hear in America daily, not in political harangues or the press only, but in official proclamations and in bills in Congress! Yes, your high officials talk now of “treasonable practices” as glibly “as girls of thirteen do of puppy dogs.” Treasonable practices! Disloyalty! Who imported these precious phrases, and gave them a legal settlement here? Your Secretary of War. He it was who by command of our most noble President authorized every marshal, every sheriff, every township constable, or city policeman, in every State in the Union, to fix, in his own imagination, what he might choose to call a treasonable or disloyal practice, and then to arrest any citizen at his discretion, without any accusing oath, and without due process or any process of law. And now, sir, all this monstrous tyranny, against the whole spirit and the very letter of the Constitution, is to be deliberately embodied in an act of Congress! Your petty provost marshals are to determine what treasonable practices are, and “inquire into,” detect, spy out, eaves-drop, insnare, and then inform, report to the chief spy at Washington. These, sir, are now to be our American liberties under your Administration. There is not a crowned head in Europe who dare venture on such an experiment. How long think you this people will submit? But words, too—conversation or public speech—are to be adjudged “treasonable practices.” Men, women, and children are to be haled to prison for free speech. Whoever shall denounce or oppose this Administration; whoever may affirm that war will not restore the Union, and teach men the gospel of peace, may be reported and arrested upon some old grudge, and by some ancient enemy, it may be, and imprisoned as guilty of a treasonable practice.
Sir, there can be but one treasonable practice under the Constitution in the United States. Admonished by the lessons of English history, the framers of that instrument defined what treason is. It is the only offense defined in the Constitution. We know what it is. Every man can tell whether he has committed treason. He has only to look into the Constitution, and he knows whether he has been guilty of the offense. But neither the Executive nor Congress, nor both combined, nor the courts, have a right to declare, either by pretended law or by construction, that any other offense shall be treason, except that defined and limited in this instrument. What is treason? It is the highest offense known to the law, the most execrable crime known to the human heart—the crime of lœsœ majestatis; of the parricide who lifts his hand against the country of his birth or his adoption. “Treason against the United States,” says the Constitution, “shall consist ONLY in levying war against them, or in adhering to their enemies, giving them aid and comfort.” [Here a Republican member nodded several times and smiled.] Ah, sir, I understand you. But was Lord Chatham guilty of legal treason, treasonable aid and comfort, when he denounced the war against the colonies, and rejoiced that America had resisted? Was Burke, or Fox, or Barré guilty, when defending the Americans in the British Parliament, and demanding conciliation and peace? Were even the Federalists guilty of treason, as defined in the Constitution, for “giving aid and comfort” to the enemy in the war of 1812? Were the Whigs in 1846? Was the Ohio Senator liable to punishment, under the Constitution, and by law, who said, sixteen years ago, in the Senate Chamber, when we were at war in Mexico, “if I were a Mexican as I am an American, I would greet your volunteers with bloody hands, and welcome them to hospitable graves?” Was Abraham Lincoln guilty, because he denounced that same war, while a Representative on the floor of this House? Was all this “adhering to the enemy, giving him aid and comfort” within the meaning of this provision?
A MEMBER. The Democratic papers said so.
Mr. VALLANDIGHAM. Sir, I am speaking now as a lawyer and as a legislator to legislators and lawyers acting under oath and the other special and solemn sanctions of this Chamber, and not in the loose language of the political canvass. And I repeat, sir, that if such had been the intent of the Constitution, the whole Federal party and the whole Whig party and their representatives in this and the other Chamber might have been indicted and punished as traitors. Yet, not one of them was ever arrested. And shall they or their descendants undertake now to denounce and to punish, as guilty of treason, every man who opposes the policy of this Administration, or is against this civil war, and for peace upon honorable terms? I hope, in spite of the hundreds of your provost marshals, and all your threats, that there will be so much of opposition to the war as will compel the Administration to show a decent respect for and yield some sort of obedience to the Constitution and laws, and to the rights and liberties of the States and of the people.
But to return; the Constitution not only defines the crime of treason, but in its jealous care to guard against the abuses of tyrannic power, it expressly ascertains the character of the proof, and the number of witnesses necessary for conviction, and limits the punishment to the person of the offender; thus going beyond both the statute of Edward, and the common law. And yet every one of these provisions is ignored or violated by this bill.
“No person”—
Says the Constitution—
“shall be convicted of treason”—
As just defined—
“unless on the testimony of two witnesses.”
Where and when, and by whom, sir, are the two witnesses to be examined, and under what oath? By your provost marshals, your captains of cavalry? By the jailors of your military bastiles, and inside of Forts Warren and La Fayette? Before arrest, upon arrest, while in prison, when discharged, or at any time at all? Has any witness ever been examined in any case heretofore? What means the Constitution by declaring that no person shall be convicted of treason “unless on the testimony of two witnesses?” Clearly, conviction in a judicial court, upon testimony openly given under oath, with all the sanctions and safe-guards of a judicial trial to the party accused. And if any doubt there could be upon this point, it is removed by the sixth article of the amendments.
But the Constitution proceeds:
“Unless on the testimony of two witnesses to the same overt act.”
But words, and still less, thoughts or opinions, sir, are not acts; and yet nearly every case of arbitrary arrest and imprisonment, in the wholly loyal States, at least, has been for words spoken or written, or for thoughts or opinions supposed to be entertained by the party arrested. And that, too, sir, is precisely what is intended by this bill.
But further:
“The testimony of two witnesses to the same overt act, or confession in open court.”
What court? The court of some deputy provost marshal at home, or of your Provost Marshal General or Judge Advocate General here in Washington? The court of a military bastile, whose gates are shut day and night against every officer of the law, and whose very casemates are closed to the light and air of heaven? Call you that “open court?” Not so the Constitution. It means judicial court, law court, with judge and jury and witnesses and counsel; and to speak of it as anything else is a confusion of language, and an insult to intelligence and common sense. Yet, to-night, you deliberately propose to enact the illegal and unconstitutional executive orders, or proclamations of last summer, into the semblance and form of law.
“To inquire into treasonable practices,” says the bill. So, then, your provost marshals are to be deputy spies to the grand spy, holding his secret inquisitions here in Washington, upon secret reports, sent by telegraph, perhaps, or through the mails, both under the control of the Executive. What right has he to arrest and hold me without a hearing, because some deputy spy of his chooses to report me guilty of “disloyalty,” or of “treasonable practices?” Is this the liberty secured by the Constitution? Sir, let me tell you that if the purpose of this bill be to crush out all opposition to the Administration and the party in power, you have no constitutional right to enact it, and not force enough to compel the people, your masters, to submit.
But the enormity of the measure does not stop here. Says the Constitution:
“Congress shall make no law abridging the freedom of speech or of the press.”
And yet speech—mere words, derogatory to the President, or in opposition to his administration and his party and policy, have, over and over again, been reported by the spies and informers and shadows, or other minions, of the men in power, to be “disloyal practices,” for which hundreds of free American citizens, of American, not African descent, have been arrested and imprisoned for months, without public accusation, and without trial by jury, or trial at all. Even upon pretense of guilt of that most vague and indefinite, but most comprehensive of all offenses, “discouraging enlistments,” men have been seized at midnight, and dragged from their beds, their homes, and their families, to be shut up in the stone casemates of your military fortresses, as felons. And now, by this bill, you propose to declare, in the form and semblance of law, that whoever “counsels or dissuades” any one from the performance of the military duty required under this conscription, shall be summarily arrested by your provost marshals, and held without trial till the draft shall have been completed. Sir, even the “sedition law” of ’98 was constitutional, merciful, and just, compared with this execrable enactment. Wisely did Hamilton ask, in the Federalist, “What signifies a declaration that the liberty of the press (or of speech) shall be inviolably preserved, when its security must altogether depend on public opinion, and on the general spirit of the people, and of the Government?”
But this extraordinary bill does not stop here.
“No person,”
Says the Constitution,
“No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land and naval force, or in the militia when in actual service in time of war or public danger; nor be deprived of life, liberty, or property, without due process of law.”
Note the exception. Every man not in the military service is exempt from arrest except by due process of law; or, being arrested without it, is entitled to demand immediate inquiry and discharge, or bail; and if held, then presentment or indictment by a grand jury in a civil court, and according to the law of the land. And yet you now propose by this bill, in addition to the one million two hundred and thirty-seven thousand men who have voluntarily surrendered that great right of freemen, second only to the ballot—and, indeed, essential to it—to take it away forcibly and against their consent, from three millions more, whose only crime is that they happen to have been so born as to be now between the ages of twenty and forty-five. Do it, if you can, under the Constitution; and when you have thus forced them into the military service they will be subject to military law, and not entitled to arrest only upon due process of law, nor to indictment by a grand jury in a civil court. But you cannot, you shall not—because the Constitution forbids it—deprive the whole people, also, of the United States of these rights, “inestimable to them and formidable to tyrants only,” under the “war power,” or upon pretense of “military necessity,” and by virtue of an act of Congress creating and defining new treasons, new offenses, not only unknown to the Constitution, but expressly excluded by it.
But again:
“In all criminal prosecutions”—
And wherever a penalty is to be imposed, imprisonment or fine inflicted, it is a criminal prosecution—
“In all criminal prosecutions”—
Says the Constitution—
“the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
Do you propose to allow any of these rights? No, sir; none—not one; but, in the twenty-fifth section, you empower these provost marshals of yours to arrest any man—men not under military law—whom he may charge, or any one else may charge before him, with “counseling or dissuading” from military service, and to hold him in confinement indefinitely, until the draft has been completed. Sir, has it been completed in Connecticut yet? Is it complete in New York? Has it been given up? If so now, nevertheless it was in process of pretended execution for months. In any event, you propose now to leave to the discretion of the Executive the time during which all persons arrested under the provisions of this bill, shall be held in confinement upon that summary and arbitrary arrest; and when he sees fit, and then only, shall the accused be delivered over to the civil authorities for trial. And is this the speedy and public trial by jury which the Constitution secures to every citizen not in the military service?
“The State and district wherein the crime”—
Yes, crime, for crime it must be, known to and defined by law, to justify the arrest—
“shall have been committed, which district shall have been previously ascertained by law.”
Do you mean to obey that, and to observe State lines or district lines in arrests and imprisonments? Has it ever been done? Were not Keyes and Olds and Mahoney and Sheward, and my friend here to the left, [Mr. ALLEN, of Illinois,] and my other friend from Maryland, [Mr. MAY,] dragged from their several States and districts to New York or Massachusetts or to this city? The pirate, the murderer, the counterfeiter, the thief—you would have seized by due and sworn process of law, and tried forthwith, by jury, at home; but honorable and guiltless citizens, members of this House, your peers upon this floor, were thrust, and may again, under this bill, be thrust into distant dungeons and bastiles, upon the pretense of some crawling, verminous spy and informer that they have “dissuaded” some one from obedience to the draft, or are otherwise guilty of some “treasonable practice.”
“And to be informed of the nature and cause of the accusation.”
How? By presentment or indictment of a grand jury. When? “Speedily,” says the Constitution. “When the draft is completed,” says this bill; and the President shall determine that. But who is to limit and define “counseling or dissuading” from military service? Who shall ascertain and inform the accused of the “nature and cause” of a “treasonable practice?” Who, of all the thousand victims of arbitrary arrests, within the last twenty-two months, even to this day, has been informed of the charge against him, although long since released? Yet even a Roman pro-consul, in a conquered province, refused to send up a prisoner without signifying the crimes with which he was charged.
“To be confronted with the witnesses against him.”
Witnesses, indeed! Fortunate will be the accused if there be any witnesses against him. But is your deputy provost marshal to call them? Oh, no; he is only to “inquire into, and report.” Is your Provost Marshal General? What! call witnesses from the remotest parts of the Union to a secret inquisition here in Washington. Has any “prisoner of State” hitherto been confronted with witnesses at any time? Has he even been allowed to know so much as the names of his accusers? Yet Festus could boast that it was not the manner of the Romans to punish any man “before that he, which is accused, have the accusers face to face.”
“To have compulsory process for obtaining witnesses in his favor.”
Sir, the compulsory process will be, under this bill, as it has been from the first, to compel the absence, rather, of not only the witnesses, but the friends and nearest relatives of the accused; even the wife of his bosom and his children—the inmates of his own household. Newspapers, the Bible, letters from home, except under surveillance, a breath of air, a sight of the waves of the sea, or of the mild, blue sky, the song of birds, whatever was denied to the prisoner of Chillon, and more, too; yes, even a solitary lamp in the casemate, where a dying prisoner struggled with death, all have been refused to the American citizen accused of disloyal speech or opinions, by this most just and merciful Administration.
And, finally, says the Constitution:
“To have the assistance of counsel for his defense.”
And yet your Secretary of State, the “conservative” Seward —the confederate of Weed, that treacherous, dissembling foe to constitutional liberty and the true interests of his country—forbade his prisoners to employ counsel, under penalty of prolonged imprisonment. Yes, charged with treasonable practices, yet the demand for counsel was to be dealt with as equal to treason itself. Here is an order, signed by a minion of Mr. Seward, and read to the prisoners at Fort La Fayette, on the 3d of December, 1861:
“I am instructed by the Secretary of State to inform you that the Department of State of the United States will not recognize anyone as an attorney for political prisoners, and will look with distrust upon all applications for release through such channels; and that such applications will be regarded as additional reasons for declining to release the prisoners.”
And here is another order to the same effect, dated “Department of State, Washington, November 27, 1861,” signed by William H. Seward himself, and read to the prisoners at Fort Warren on the 29th of November, 1861:
“Discountenancing and repudiating all such practices”—
The disloyal practice, forsooth, of employing counsel—
“the Secretary of State desires that all the State prisoners may understand that they are expected to revoke all such engagements now existing and avoid any hereafter, as they can only lead to new complications and embarrassments to the cases of prisoners on whose behalf the Government might be disposed to act with liberality.”
Most magnanimous Secretary! Liberality toward men guilty of no crime, but who, though they had been murderers or pirates, were entitled by the plain letter of the Constitution to have “the assistance of counsel for their defense.” Sir, there was but one step further possible, and that short step was taken some months later, when the prisoners of State were required to make oath, as the condition of their discharge, that they would not seek their constitutional and legal remedy in court for the wrongs and outrages inflicted upon them.
Sir, incredible as all this will seem some years hence, it has happened, all of it, and more yet untold, within the last twenty months, in the United States. Under Executive usurpation, and by virtue of presidential proclamations and cabinet orders, it has been done without law and against Constitution; and now it is proposed, I repeat, to sanction and authorize it all by an equally unconstitutional and void act of Congress. Sir, legislative tyranny is no more tolerable than Executive tyranny. It is a vain thing to seek to cloak all this under the false semblance of law. Liberty is no more guarded or secured, and arbitrary power no more hedged in and limited here than under the Executive orders of last summer. We know what has already been done, and we will submit to it no longer. Away, then, with your vain clamor about disloyalty, your miserable mockery of treasonable practices. We have read with virtuous indignation in history ages ago of an Englishman executed for treason, in saying that he would make his son heir to the crown, meaning of his own tavern-house, which bore the sign of the crown; and of that other Englishman, whose favorite buck the king had killed, and who suffered death as a traitor, for wishing, in a fit of vexation, that the buck, horns and all, were emboweled in the body of the king. But what have we not lived to see in our own time? Sir, not many months ago, this Administration in its great and tender mercy toward the six hundred and forty prisoners of State, confined for treasonable practices, at Camp Chase near the capital of Ohio, appointed a commissioner, an extra judicial functionary, unknown to the Constitution and laws, to hear and determine the cases of the several parties accused, and with power to discharge at his discretion, or to banish to Bull’s Island, in Lake Erie. Among the political prisoners called before him was a lad of fifteen, a newsboy upon the Ohio river, whose only offense proved, upon inquiry, to be that he owed fifteen cents the unpaid balance of a debt due to his washer-woman—possibly a woman of color—who had him arrested by the provost marshal as guilty of “disloyal practices.” And yet, for four weary months the lad had lain in that foul and most loathsome prison, under military charge, lest, peradventure, he should overturn the Government of the United States; or, at least, the administration of Abraham Lincoln!
Several MEMBERS on the Democratic side of the House. Oh no; the case cannot be possible.
Mr. VALLANDIGHAM. It is absolutely true, and it is one only among many such cases. Why, sir, was not the hump-back carrier of the New York Daily News, a paper edited by a member of this House, arrested in Connecticut, for selling that paper, and hurried off out of the State, and imprisoned in Fort La Fayette? And yet, Senators and Representatives, catching up the brutal cry of a bloodthirsty but infatuated partisan press, exclaim “the Government has been too lenient, there ought to have been more arrests!”
Well did Hamilton remark that “arbitrary imprisonments have been in all ages the favorite and most formidable instruments of tyranny;” and, not less truly, Blackstone declares that they are “a less public, a less striking, and therefore a more dangerous engine of arbitrary government” than executions upon the scaffold. And yet, to-night, you seek here, under cloak of an act of Congress, to authorize these arrests and imprisonments, and thus to renew again that reign of terror which smote the hearts of the stoutest among us, last summer, as “the pestilence which walketh in darkness.”
But the Constitution provides further, that
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”
Sir, every line, letter, and syllable of this provision has been repeatedly violated, under pretense of securing evidence of disloyal or treasonable practices; and now you propose by this bill to sanction the past violations, and authorize new and continued infractions in future. Your provost marshals, your captains of cavalry are to “inquire into treasonable practices.” How? In any way, sir, that they may see fit; and of course by search and seizure of person, house, papers, or effects; for, sworn and appointed spies and informers as they are, they will be and can be of no higher character, and no more scrupulous of law or right or decency than their predecessors of last summer, appointed under Executive proclamations of no more or less validity than this bill which you seek now to pass into a law. Sir, there is but one step further to take. Put down the peaceable assembling of the people; the right of petition for redress of grievances; the “right of the people to keep and bear arms;” and finally the right of suffrage and elections, and then these United States, this Republic of ours, will have ceased to exist. And that short step you will soon take, if the States and the people do not firmly and speedily check you in your headlong plunge into despotism. What yet remains? The Constitution declares that—
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
And again:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.”
And yet, under the monstrous doctrine that in war the Constitution is suspended, and that the President as Commander-in-Chief, not of the military forces only, but of the whole people of the United States, may, under “the war power,” do whatever he shall think necessary and proper to be done, in any State or part of any State, however remote from the scene of warfare, every right of the people is violated or threatened, and every power of the States usurped. Their last bulwark, the militia, belonging solely to the States when not called as such into the actual service of the United States, you now deliberately propose, by this bill, to sweep away, and to constitute the President supreme military dictator, with a standing army of three millions and more at his command. And for what purpose are the militia to be thus taken from the power and custody of the States? Sir, the opponents of the Constitution anticipated all this, and were denounced as raving incendiaries or distempered enthusiasts.
“The Federal Government”—
Said Patrick Henry, in the Virginia Convention,
“squints towards monarchy. Your President may easily become a king. If ever he violates the laws, will not the recollection of his crimes teach him to make one bold push for the American throne? Will not the immense difference between being master of everything and being ignominiously tried and punished powerfully excite him to make this bold push? But, sir, where is the existing force to punish him? Can he not, at the head of his army, beat down all opposition? What, then, will become of you and your rights? Will not absolute despotism ensue?”*
And yet, for these apprehensions, Henry has been the subject of laughter and pity for seventy years. Sir, the instinctive love of liberty is wiser and more far-seeing than any philosophy.
Hear, now, Alexander Hamilton, in the Federalist. Summing up what he calls the exaggerated and improbable suggestions respecting the power of calling for the services of the militia, urged by the opponents of the Constitution, whose writings he compares to some ill-written tale, or romance full of frightful and distorted shapes, he says:
“The militia of New Hampshire, they allege, is to be marched to Georgia; of Georgia to New Hampshire; of New York to Kentucky; and of Kentucky to Lake Champlain. Nay, the debts due to the French and Dutch are to be paid in militia men, instead of Louis d’ors and ducats. At one moment, there is to be a large army to lay prostrate the liberties of the people; at another moment, the militia of Virginia are to be dragged from their homes, five or six hundred miles, to tame the republican contumacy of Massachusetts; and that of Massachusetts is to be transported an equal distance to subdue the refractory haughtiness of the aristocratic Virginians. Do persons who rave at this rate imagine that their eloquence can impose any conceits or absurdities upon the people of America for infallible truths?”
And yet, sir, just three quarters of a century later we have lived to see these ravings, conceits, and absurdities practiced, or attempted, as calmly and deliberately as though the power and the right had been expressly conferred.
And now, sir, listen to the answer of Hamilton to all this—himself the friend of a strong Government, a Senate for life, and an Executive for life, with the sole and exclusive power over the militia, to be held by the national Government; and the Executive of each State to be appointed by that Government:
“If there should be an army to be made use of as the engine of despotism, what need of the militia? If there should be no army, whither would the militia, irritated at being required to undertake a distant and distressing expedition, for the purpose of riveting the chains of slavery upon a part of their countrymen, direct their course, BUT TO THE SEATS OF THE TYRANTS WHO HAD MEDITATED SO FOOLISH AS WELL AS SO WICKED A PROJECT; TO CRUSH THEM IN THEIR IMAGINED INTRENCHMENTS OF POWER, AND MAKE THEM AN EXAMPLE OF THE VENGEANCE OF AN ABUSED AND INCENSED PEOPLE? Is this the way in which usurpers stride to dominion over a numerous and enlightened nation?”
Sir, Mr. Hamilton was an earnest, sincere man, and, doubtless, wrote what he believed: he was an able man also, and a philosopher; and yet how little did he foresee, that just seventy-five years later, that same Government, which he was striving to establish, would, in desperate hands, attempt to seize the whole militia of the Union, and convert them into a standing army, indefinite as to the time of its service, and for the very purpose of not only beating down State sovereignties, but of abolishing even the domestic and social institutions of the States.
Sir, if your objects are constitutional, you have power abundantly under the Constitution, without infraction or usurpation. The men who framed that instrument made it both for war and peace. Nay, more, they expressly provide for the cases of insurrection and rebellion. You have ample power to do all that of right you ought to do—all that the people, your masters, permit under their supreme will, the Constitution. Confine, then, yourselves within these limits, and the rising storm of popular discontent will be hushed.
But I return, now, again, to the arbitrary arrests sanctioned by this bill, and by that other consummation of despotism, the indemnity and suspension bill, now in the Senate. Sir, this is the very question which, as I said a little while ago, we made a chief issue before the people in the late elections. You did, then, distinctly claim—and you found an Attorney General and a few other venal or very venerable lawyers to defend the monstrous claim—that the President had the right to suspend the writ of habeas corpus; and that every one of these arrests was legal and justifiable. We went before the people with the Constitution and the laws in our hands, and the love of liberty in our hearts; and the verdict of the people was rendered against you. We insisted that Congress alone could suspend the writ of habeas corpus when, in cases of rebellion or invasion, the public safety might require it. And today, sir, that is beginning to be again the acknowledged doctrine. The Chief Justice of the Supreme Court of the United States so ruled in the Merryman case; and the supreme court of Wisconsin, I rejoice to say, has rendered a like decision; and if the question be ever brought before the Supreme Court of the United States, undoubtedly it will be so decided, finally and forever. You yourselves now admit it; and at this moment, your “indemnity bill,” a measure more execrable than even this conscription, and liable to every objection which I have urged against it, undertakes to authorize the President to suspend the writ all over or in any part of the United States. Sir, I deny that you can thus delegate your right to the Executive. Even your own power is conditional. You cannot suspend the writ except where the public safety requires it, and then only in cases of rebellion or invasion. A foreign war, not brought home by invasion, to our own soil, does not authorize the suspension, in any case. And who is to judge whether and where there is rebellion or invasion, and whether and when the public safety requires that the writ be suspended? Congress alone, and they cannot substitute the judgment of the President for their own. Such, too, is the opinion of Story: “The right to judge,” says he, “whether exigency has arisen, must exclusively belong to that body.” But not so under the bill which passed this House the other day.
Nor is this all. Congress alone can suspend the writ. When and where? In cases of rebellion or invasion. Where rebellion? Where invasion? Am I to be told that because there is rebellion in South Carolina the writ of habeas corpus can be suspended in Pennsylvania and Massachusetts where there is none? Is that the meaning of the Constitution? No, sir; the writ can be suspended only where the rebellion or invasion exists—in States, or parts of States, alone, where the enemy, foreign or domestic, is found in arms; and moreover, the public safety can require its suspension only where there is rebellion or invasion. Outside of these conditions, Congress has no more authority to suspend the writ than the President, and, least of all, to suspend it without limitation as to time, and generally all over the Union, and in States not invaded or in rebellion. Such an act of Congress is of no more validity, and no more entitled to obedience, than an executive proclamation; and in any just and impartial court I venture to affirm that it will be so decided.
But again, sir, even though the writ be constitutionally suspended, there is no more power in the President to make arbitrary arrests than without it. The gentleman from Rhode Island [Mr. SHEFFIELD] said, very justly—and I am sorry to see him lend any support to this bill—that the suspension of the writ of habeas corpus does not authorize arrests except upon sworn warrant, charging some offense known to the law and dangerous to the public safety. He is right. It does not; and this was so admitted in the bill which passed the Senate in 1807. The suspension only denies release upon bail, or a discharge without trial, to parties thus arrested. It suspends no other right or privilege under the Constitution—certainly not the right to a speedy public trial by jury in a civil court. It dispenses with no “due process of law,” except only that particular writ. It does not take away the claim for damages to which a party illegally arrested, or legally arrested, but without probable cause, is entitled.
And yet, everywhere, it has been assumed that a suspension of the writ of habeas corpus is a suspension of the entire Constitution and of all laws, so far as the personal rights of the citizen are concerned, and that, therefore, the moment it is suspended, either by the President, as heretofore asserted, or by Congress, as now about to be authorized, arbitrary arrests, without sworn warrant or other due process of law, may be made at the sole pleasure or discretion of the Executive. I tell you no; and that, although we may not be able to take the body of the party arrested from the provost marshal by writ of habeas corpus, every other right and privilege of the Constitution and of the common law remains intact, including the right to resist the wrong-doer or trespasser, who, without due authority, would violate your person, or enter your house, which is your castle; and, after all this, the right also to prosecute on indictment or for damages, as the nature or aggravation of the case may demand. And yet, as claimed by you of the party in power, the suspension of this writ is a total abrogation of the Constitution and of the liberties of the citizen and the rights of the States. Why, then, sir, stop with arbitrary arrests and imprisonments? Does any man believe that it will end here? Not so have I learned history. The guillotine! the guillotine! the guillotine follows next.
Sir, when one of those earliest confined in Fort La Fayette—I had it from his own lips—made complaint to the Secretary of State of the injustice of his arrest, and the severity of the treatment to which he had been subjected in the exercise of arbitrary power, no offense being alleged against him, “why,” said the Secretary, with a smile of most significant complacency, “my dear sir, you ought not to complain; we might have gone further.” Light flashed upon the mind of the gentleman, and he replied: “Ah! that is true, sir; you had just the same right to behead as to arrest and imprison me.” And shall it come to this? Then, sir, let us see who is beheaded first. It is horrible enough to be imprisoned without crime, but when it becomes a question of life or death, remember the words of the book of Job—“All that a man hath will he give for his life.”
Sir, it is this which makes revolutions. A gentleman upon the other side asked this afternoon which party was to rise now in revolution. The answer of the able and gallant gentleman from Pennsylvania [Mr. BIDDLE] was pertinent and just—“No party, but an outraged people.” It is not, let me tell you, the leaders of parties who begin revolutions. Never. Did any one of the distinguished characters of the Revolution of 1776 participate in the throwing of the tea into Boston harbor? Who was it? Who, to-day, can name the actors in that now historic scene? It was not Hancock, nor Samuel Adams, nor John Adams, nor Patrick Henry, nor Washington; but men unknown to fame. Good men agitate; obscure men begin real revolutions; great men finally direct and control them. And if, indeed, we are about to pass through the usual stages of revolution, it will not be the leaders of the Democratic party—not I, not the men with me here to-night—but some man among the people, now unknown and unnoted, who will hurl your tea into the harbor; and it may even be in Boston once again; for the love of liberty, I would fain believe, lingers still under the shadow of the monument on Bunker Hill. But, sir, we seek no revolution—except through the ballot-box. The conflict to which we challenge you, is not of arms but of argument. Do you believe in the virtue and intelligence of the people? Do you admit their capacity for self-government? Have they not intelligence enough to understand the right, and virtue enough to pursue it? Come then: meet us through the press, and with free speech, and before the assemblages of the people, and we will argue these questions, as we and our fathers have done from the beginning of the Government—“Are we right or you right, we wrong or you wrong?” And by the judgment of the people we will, one and all, abide.
Sir, I have done now with my objections to this bill. I have spoken as though the Constitution survived, and was still the supreme law of the land. But if, indeed, there be no Constitution any longer, limiting and restraining the men in power, then there is none binding upon the States or the people. God forbid. We have a Constitution yet, and laws yet. To them I appeal. Give us our rights; give us known and fixed laws; give us the judiciary; arrest us only upon due process of law; give us presentment or indictment by grand juries; speedy and public trial; trial by jury, and at home; tell us the nature and cause of the accusation; confront us with witnesses; allow us witnesses in our behalf, and the assistance of counsel for our defense; secure us in our persons, our houses, our papers, and our effects; leave us arms, not for resistance to law or against rightful authority, but to defend ourselves from outrage and violence; give us free speech and a free press; the right peaceably to assemble; and above all, free and undisturbed elections and the ballot; take our sons, take our money, our property, take all else; and we will wait a little, till at the time and in the manner appointed by Constitution and law we shall eject you from the trusts you have abused, and the seats of power you have dishonored, and other and better men shall reign in your stead.
*And the reporter, unable to follow the vehement orator of the Revolution, adds:
“Here, Mr. Henry strongly and pathetically expatiated on the probability of the President’s enslaving America, and the horrid consequences that must result.”