James Pearce

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WRIT OF HABEAS CORPUS.

SPEECHOF

HOK JAMES A. PEAECE, OP MARYLAND,IN THE SENATE OF THE UNITED STATES, JULY 30, 1861.

The Senate resumed tlic consideration of the joint reso-Ititioii (S. No. 1) to approve and confirm certain actsof tliePresident of the United States for suppressinginsurrectionand rebellion.Mr. PEARCE said:Mr. President: Before the vote is taken, I

desire to say to the Senate that it had been mypurpose from an early day of the session to ad-dress them at length on the subject of this reso-lution. But J have found myself in a conditionof health that has made me physically incapableof doing so, and I am under medical direction toavoid the excitement of public speaking. Never-theless, I am not willing, sir, that my vote shallbe given upon this resolution without saying avery few words to explain the position which Ioccupy.Mr. President, I am one of those who, fromthe commencement of this controversy, lamentedthe progress of that antagonism of sections whichseemed to mc from the beginning to promise thecalamities which have since gathered around us.I was most sincerely anxious that the dissolu-tion of the Union should not be the result, eitherof the political condition of the two sections ofthe country, or of any other conceivable stateof things; and I looked upon it as the most im-portant interest of my State, of all others, thatthe Union should be maintained in its integrity.A small State, situated in the very heart of theUnion; penetrated by its great bay and its afflu-ents, so as to be accessible at all times to thosewhose maritime powercommands the sea; border-ing upon one of the most powerful free States ofthis Union, and within a very short distance fromanother, the most powerful of all the States in theUnion; deeply interested in her trade with severalsouthern States which seemed to be likely to becut off from the residuary States; largely inter-ested, too, in trade withPennsylvania,with RhodeIsland, and with other of the northern States; itwas impossible to conceive a condition of thingswhich could be more disastrous to the State ofMaryland than the dissolution of the Union.

Sir, if there had been no patriotism in Mary-land; if there had been no cherished recollections

of the glories of the past; of that glorious Revo-lution, in which we, small in population and lim-ited in territorial extent as we were, had borne anot inglorious part; if there had been no attach-ment to that flag which we had so long beenproud to hail as the common standard of the coun-try, still our interests were such as bound us in-evitably to the cause of the Union. We did notbelieve in the right of peaceful, constitutionalsecession. We saw no mode of separation fromthe Union other than revolution; and we were notsensible of any grievances so intolerable as to ab-solve us from our allegiance, and require us tomake, or justify us in making, a revolution, withall its uncertainties and dangers and the probableor possible consequences, involving not merelyour future relations, but our peace, security, pros-perity, and happiness for all time. I have notchanged a jot of these opinions and feelings fromthat day to this; and it is the prevailing sentimentin my State nownow, when that State has feltpeculiar evils growing out of the existing con-dition of things, and has suffered in violation otprivate and public rights as no other State has.Though in the Union; though loyal to a large de-gree; though represented in the other House ofCongress exclusively by men who are Unionmen, who have been elected as such by enormousand unprecedented majorities; though still firmin these convictions and in this attachment, mySlate has been subjected to what we conceiveto be positive, arbitrary, causeless, and wantonoppressions.Now, sir, while I have not changed these sen-timents of Union; while I desire, if possible,that the Union may be preserved in the face ofall the probabilities which I confess seem to beagainst it, I am not willing that a course of pro-cedure shall be adopted in Maryland, which 1 donot believe to be sanctioned by tlie Constitution,but at variance with the plain principles of theConstitution, and with the essential rights ofrepublican liberty.The suspension of the privilege of the habeascorpus by executive authority is a violation of theprinciples of public freedom which have beenconsecrated for centuries. These principles wene


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2 P>3dear to our Anglo-Saxon forefatliers before thethe period of Magna Charta. From the days ofMagna Charta, which, seeking to restore ancientrights, provided that no freeman should be taken orimprisoned ivithout the lawful judgment ofhis peers,or the law of the land, down to tne declaration ofour independence, that principle has been dearto the freemen of England and America. FromMagna Charta, about the year 1200, down to therevolution of 16G8, there was a constant strugglebetween the people and the Crown for the pres-ervation of this privilege, the only one whichguaranties personal freedom anywherethe free-dom from being arrested and imprisoned, exceptby lawful process. Without this guarantee, noGovernment can be called free; no people can feelthat sense of security which is indispensable to trueliberty; and all the boast of constitutional bar-riers to despotism are utterly idle and vain.

I will not undertake to describe the strugglesbetween the people and the monarch throughoutthat long period. We know that the power ofarbitrary imprisonment was an enormous engineof oppression, and was most tyrannously used.The Commons of England resisted it in all itsphases; and at last, even in the time of the des-potic Stuarts, succeeded in restraining the execu-tive authority and snatching from it this pretendedpower to arrest upon the King's command with-out process of law.In the time of Charles 1, the Petition of Right,accepted and signed by the King when the peopleof England were led by an assembly of states-men, declared these arbitrary imprisonments tobe illegal, and thus secured, as was supposed, areturn to the great rule of Magna Charta.We know, too, sir, how royal power, with Ijudicial minions depending upon its pleasure, con-trived to avoid, evade, or delay the operation ofthat rule. De Lolme tells us that the case of anobscure individual in the reign of Charles II ledto another successful struggle between the Com-mons and the Crown. One Jenks, a plain citi-zen, was charged with uttering mutinous languageat a meeting in Guildhall, where he had moved apetition to the King for a new Parliament. Forthis he was illegally committed by order of theprivy council, and detained for two months.This violation of Anglo-Saxon right stimulated4bat noble struggle of the people which resulted,in the thirty-first year of Charles II, in the pas-sage of the habeas corpus act, which defined theright of the citizen to judicial relief from illegalimprisonment, made the duty of the judge imper-ative, and imposed a heavy pecuniary penalty uponhim for denying it. This act only sought to se-cure the rights of the citizen which honest judges,even before the judicial tenure was made inde-pendent of royal authority, had affirmed. Itwas in the reign of Henry VI that an Englishjudge, when asked if it was not lawful for oneto arrest a party upon the command of the King,said " No; if 1 were to arrest a man even in thepresence of the King and by his command, noth-ing could save me from the action of false im-prisonment which the party would have againstme."Then, air, the declaration of rights and the bill

of rights, in the time of William III, consecratedthis principle; and the independence of the judi-ciary made it impregnable; and from that day tothis, never has there been in England a suspen-sion of the privilege of habeas corpus, except bythe voice of Parliament, whose omnipotence com-passes everything done by legislative authority.There have been many occasions when it hasbeen deemed necessary in Great Britain to sus-pend the privilege of the habeas corpus. It wassuspended during the time of William III, and ofAnne, a period of great intrigue, when the valid-ity of the settlement of the Crown, at the revolu-tion, was vehemently disputed; during the reignof the Georges, when the Scolts' rebellion of 1715and 1745 took place; during a portion of thestormy periods of the French revolution; in Ire-land during the great rebellion of 1798; and uponthe occasion of the great riots which followed thepeace of 1815; and its last suspension, I believe,was in Ireland'in 1848, during what was calledSmith O'Brien's rebellion.

It is well to observe how the English nation,attached as they are to the form of monarchy, butgreat and glorious in maintaining their freedomagainst executive authority at all times and againstall odds, have preserved that principle; and whenParliament has suspended the privilege of habeascorpus, how carefully the law has been guarded.In passing laws for this purpose they have alwayslimited the time during which the parties arrestedfor highly treasonable practices, or suspicion ofthem, may be detained without bail or mainprize;and in the bill passed in 1848, during the last Irishrebellion, they went further, and required thatsuch detentions must be of persons taken on war-rants signed by the Lord Lieutenant of Ireland,or by six counselors of the privy council, or theirchief secretary. They require, further, as a guardfor the liberty of the subject, that a copy of thewarrant thus to be issued shall be transmitted tothe clerk of the Crown for Dublin, and filed byhim in the office of the pleas of the Crown in andfor the city of Dublin. They do not intrust toinferior military officers, even in times of rebel-lion, this discretion, so liable to abuse, for theyknow and acknowledge that if this inestimableprivilege is liable to be suspended by the will ofone individual, it is subject, of course, to thecaprice, the passion, the malignity, and folly ofthe party, whosoever he may be. How muchmore is it liable to these influencesunjust, un-holy, and infamouswhen it may be exercisedby a subordinate officer, no one knows who, foran indefinite period, and without any public evi-dence of the order under which the odious arrestand imprisonment may be effected, as seems tobe the case with us in this land of republican free-dom and written Constitution, ordained for the pur-pose, among others, of securing the blessings ofliberty to the people of the United States and theirposterity.

Sir, in my own State of Maryland, where thisprivilege has been suspended, 1 cannot, in mostinstances, trace the order of arrest to any act ofthe President, or of General Scott, or of GeneralBanks, or of any superior officer. 1 have, in somecases, where the parties were men of peculiar


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position, traced it to General Banks, oi- his pred-ecessor; but in general wc cannot trace it. Amajor of New York militia, in one case, wliosename I do not remember, and probably shall neverhear again; some person even of less authoritya captain of militia, in one instance, from someother Statehas arrested a party; and these ar-rests have been made, not upon any.lawful assign-able cause; not by any warrant for which the partymay be held thereafter responsible; not by theordinary superior military authority, nor uponany suggestion that authorized the suspicion thatthe party was guilty of practices treasonable intheir nature or dangerous to the Government, but,as I believe most firmly, upon intimations con-veyed by base and unprincipled men, who, togratify private malignity and personal or politicalhostility, have rendered persons far more respect-able than themselves, and quite as loyal too, thevictims of this tyrannous oppression. What istyranny, sir, if we may not thus designate injust-ice practiced upon men, whether communities orindividuals, by illegal and irresponsible authority?That is the very highest and the very worst tyr-anny, in my judgment; and it is that for which Iobject to the suspension of the habeus corpus byexecutive authority at this time.Mr. President, we thought when we were adopt-ing our Declaration of Independence, that we werepreserving all the principles of Anglo-Saxon lib-erty. It was because of the violation of thoseprinciples*that we entered into the controversywith our mother country. One of the causes ofcomplaint against George III in the Declaration ofIndependence was, that he had affected to renderthe military independent ofand superior to the civilauthority; and when wc adopted the Constitutionof the United States, it was no new thing with usto declare that the privilege of the writ of habeascorpus should not be suspended, except when incases of rebellion or invasion the public safetyshould require it; and it was nota new thing withus that tiiat privilege, thus authorized to be sus-pended in certain limited cases, was to be sus-pended only by legislative authority. The Con-stitution, when it declares that the privilege of thewrit o( habeas coiyus shaW not be suspended ex-cept when in cases of rebellion or invasion thepublic .safety may require it, does not describethe sort of writ which is meant, because it waswell known that every intelligent freeman under-stood only that one writ of habeas corpus, whichwas intended for the protection of the personalliberty of the subject or citizen. The AttorneyGeneral, in an opinion which I see he has givento the President, aeks the question, which one ofthe many writs of habeas corpus it was.' as if anyintelligent man, as if he himself, ever doubtedwhich it was. Who supposed that the privilegealluded to in the Constitution meant the habeascorpus ad respondendum, or the habeas C07-pus adtestificandum, or any of the others, which are notworth a button now, being superseded by other.processes.' Whoeverdreamed, whatlawyer, whatcommentator, what intelligent politician, whatstatesman, ever dreamed that any other habeascorpus was intended by that clause of the Con-stitution, than the habeas corpus ad subjiciendum.

iwhich is the only remedy for freemen against[tyranny and oppression, let it come from indi-! viduals out of power or individuals in power.'Our fathers, in the amendments to the Consti-tution, guarded against the very possibility ofany abuse of this sort, as they supposed, when

jthey declared, in the fifth amendment to the ar-ticles of the Constitution, that no man should be

! deprived of his liberty without due process of law.When they put into the Constitution the provis-Iion in regard to the habeas corpus, they did so with

!the full knowledge of what it was in Englaiid atthe time when our sturdy ancestors settled inAmerica, and what it was in all the States of theUnion when the Constitution was made. Theyknew that it was the great bulwark of personalliberty there and herethe right of rights, as theSenator from Kentucky properly called it. A writof right it is, and a right of rights it is, and with-out it we have no rights; and its violation by ex-ecutive authority is just as much to be toleratedas a violation of any other constitutional princi-ple, no matter how vital and how sacred it maybe, if anything can be considered more sacred tofreemen than personal liberty.

Besides, sir, the Constitution, while it i-ecog-nizes the right of every freeman in the UnitedStates to the writ of /tafceascorptts for reliefagainstimprisonment, for deprivation of personal libertyby any restraint upon it, does not provide themachinery by which that writ shall be carried intooperation. It left that to Congress; and Congressvery properly, with a full understanding of thesubject, at its first session, I believe, passed thehabeas corpus act, by which jurisdiction was givento the courts of the United States, on that subject;and the Supreme Court of the United States havesaid that we must look to the common law for theconstruction of it. The right is therefore both aconstitutional one and a statutory one. Shall Ihe told that a statutory right can be taken awayexcept by a statute.' Who has the right to takeaway, either permanently or temporarily, the au-thority of the courts upon that subject.' It is le-gislative in its character, and it must be by legis-lation that it shall be repealed, and by legislationthat it shall be suspended, if at all. Suspensionof a law is but a temporary repeal of it. It istherefore legislative in its character, and cannotbe referred to the power of the Executive, with- ^out confounding these powers of government,which it was our special object to keep sepai'^teand distinct. It was a legislative power in Eng-land. Why is it to be pretended thatit is an ex-ecutive one in republican America.' It is beyondthe power of the Crown under a monarchy; andbecame so after long and arduous struggles of thepeople. Why should it at once elude the legis-lative authority here, and settle down into thehands of our Executive, without a word in theConstitution to indicate such a departure from theijest examples of liberty set us by our Englishforefathers? You will find, upon referring to theConstitution, that the provision is found in thefirst article, which relates to the powers of Con-gress; and in that section of it which puts pro-hibitions upon Congress. I have heard it saidthat there are other things than prohibitions upon


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the Congress in that ninth section of the firstarticle; but whoever looks at itcarefuily will seethat such is not the fact; that they are all prohi-bitions upon Congress; and that it is not possi-ble to imply, from the fact that some of them lookto other branches of the Government than Con-gress, that therefore this may be assumed to bean executive power.There are eight clauses in this ninth section ofthe first article. The first relates to the prohibi-tion upon Congress as to the migration or import-ation of certain persons prior to the year 1808.The second is the clause in question, which weare now considering. The third relates to billsof attainder. Of course, only Congress could passa bill of attainder; and the prohibition againstpassing a bill of attainder is a prohibition uponCongress alone. The fourth relates to capitationor other direct taxes. The fifth to duties uponarticles exported from any State. The sixth de-clares that no preference shall be given, by anyregulation of commerce or revenue, to the portsof one State over those of another. All these areprohibitions upon the power of Congress. Theseventh, it is said, however, is not a prohibitionupon the power of Congress. This provides that

" No money shall be drawn from tlie Treasury hut inconsequence of appropriations made by law; and a regularstatement and account of the receipts and expenditures ofall public money shall be published from time to time."The latter part of this, clearly, is an injunction

on Congress; the first part of it would be an in-junction on the Executive as well as on Congress.In regard to this, we must remember that thisclause, which is said not to be a prohibition uponthe powers of Congress, was not in the originaldraft of the Constitution; it was brought in bythe subsequent report of a committee, very latein the session of the convention. The wholeclause was inserted in this ninth section, to which,indeed, it is appropriate; for it contains an in-junction upon Congress to make annual publi-cations of the receipts and expenditures; and itdoes, in effect, prohibit their allowing the purseto go into the unfetteredcontrolof the Executive,but requires them to direct, by appropriations,the purposes to which the public treasure, of whichthey arc the guardians, shall be applied. Thelast clause of this section, the eighth, is, undoubt-edly, a prohibition upon Congress. " No title ofnobility shall be granted by the United States,"&c. Unless it be contended that our Presidenthas royal prerogatives, and is like the King ofEngland, the fountain of honor, this prohibitioncannot be supposed to be intended to be on him;and the permission in the last part of the clauseis expressly to Congress to consent to the accept-ance, by an oflicer of the United States, of anypresent, emolument, &c., from any king or State.These are the whole of the eight clauses in thatninth section of the first article, and all relate tothe power of Congress; so that, while it is legis-lative in its character, and cannot be anythingelse than legislative it cannot be executive, forthe simple duty of the Executive is to sec thatthe laws are executed, not to make them, nor torepeal them, nor to suspend them. While, there-fore, it is legislative in its characterlegislative

as to the place in which it is put by the Consti-tution, it is also legislative for another reason,which may be inferred from the Constitution.Tlie second article of the Constitution describesthe oflice of the President of the United States,gives his executive powers and his duties; andnot one word do we sec there of any authority tohim to suspend the privilege of this writ, norany-thing from which, by the most strained and forcedconstruction,it can possibly be implied. So that,if we are to find any authority for the suspension,by mere executive power, of a constitutionalprovision enforced by legislative enactment, wemust look to some higher law than the statutes ofCongressor the Constitution of the United States.

I find, sir, in the letter addressed by the Attor-ney General of the United States to the President,that there is a great deal said about coordinatebranches of the Government, and the unity andactivity of the Executive, and about the powerwhich the President may, under an act of Con-gress, exercise in the use of the force which thelaw puts at his command for public purposes;and we are gravely told that the President mayuse the Army of the United States to eject in-truderssquattersfrom the public lands; as ifthere were any analogy between that case andthis; the one being the case of power given undera statute of Congress, the Legislature conferringthe power upon the President expressly, not inviolation of any principle of the Constitution , butin subordination to it; and the other a case inwhich they have conferred no such power, andwhere they cannot confer any such power. For Inot only hold that the suspension of the constitu-tional and legal provisions in regard to the habeascorpus is not executive in its character, and can-not be exercised by the President, but that Con-gress itself cannot make the exercise of that powerof suspension legal by any one 'else. It is theirown power. It is intrusted to them exclusivelyas one of their legislative functions, and they canno more assign it than they can assign any legis-lative authority with which they are invested.The legislative powers of this Government mustbe exercised by Congress, in whom alone theConstitution reposes them. Then we are toldthat the President's constitutional oath is to " pre-serve, protect, and defend the Constitution of theUnited States, "and that this " implies the posverto perform" what he thus solemnly undertakesto do; that as it is his duty to put down insur-rection, he may, at his discretion, use all themeans of force which the Constitution and thestatutes place at his command, and that the man-ner in winch he shall use these means dependssolely upon his own discretion. And from thesepremises the Attorney General assumes I can-not say arguesthe opinion that the Presidentmay, in a rebellion like the present, suspend theprivilege ofpersons arrested by his order, upon thesuspicion which he entertains that they are spies,emissaries, oraccomplices ofthose in arms againstthe Government, and thus suspend the constitu-tional provision, the enactment of Congress, andthe judicial authority conferred thereby. Thisdoctrine would have been all-sufficient forCharles Ior Charles II, and the Commons ofEngland would


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have had no cause for exultation when the petitionofright was signed, or the habeas corpus act passedwhich, under this opinion, would have been worthonly so much blank paper as they were enrolledon. It assumes that all provisions of the Con-stitution are inferior to that which imposes uponhim the oath of office, and tiiat the power impliedfrom that oath overrides all other powers and pro-visions with which it may come in conflict; andso this great zeal for tiic preservation of the Con-

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stitution makes it a thing of wax, to be twistedand molded at the discretion of the* Executive,instead of an inexorable fundamental law of theland, beyond the reach of President or Congress,and only to be altered by the people in prescribedform and mode. I regret to be obliged to say all-^ihis, because I have always had great respect fornot only the private but the professional characterof the Attorney General.

Equally unfounded in law or fact is the alle-gation that the suspension of this constitutionalprivilege by the President was necessary.

I know that never before in the history of thiscountry has it been deemed necessary to suspend(he habeas corpus even by Congress; that though

|upon a message of Mr. Jefferson to Congress,|duringthealleged treasonable conspiracy ofAaron|Burr, the Senate did pass such a bill, (in secret

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session, I think,) it was rejected overwhelmingly iby the House of Representativesthe vote being'113 to 19. I know, too, that Mr. Jefferson, that

\great apostle of liberty, whom so many gentlemen]

here- profess to revere as the founder of the polit- .ical creed in which they place the most implicit

[confidence and faith, declared himself, at the verytime of the formation of the Constitution, as op-

\posed to any suspension whatsoever, even bylegislative authority, of the privilege of the writof habeas coiyits; declared himself in favor of its !eternal and unremitting force; and, sir, I very imuch incline to think he was right. I doubt verymuch whether the good to be effected by its sus-pension, in any condition of things in which thecountry can be placed, will be at all commensu-rate with the evil undoubtedly sure to follow fromsuch suspension. If necessity, which is an odious il)lea,knownforhundredsofyearsas" the tyrant's

;plea"a plea by which you may overthrow allconstitutional provisions if that plea is efficienthere; if that is a justification for a violation ofone provision of the Constitution, it is equally ajustification for any and all violations of it. Aswell may you justify the President for breakinginto the Treasury and taking from it'all the mil-lions and the very last dollar in it, not in pursu-ance of appropriations made bylaw, but witlioutappropriations, and in the face of appropriationsmade for other purposes, that he may apply it ashe thinks needful; as well may you do that, underthe plea of necessity, as justify the suspensionof the habeas corpus under this plea. I incline tothink that the necessity in this latter case wouldoften be much stronger than it would be in regardto the suspension of the personal right of the cit-izen. Indeed, sir, the greatest danger is to beapprehended from infractions of the law whichseem to be sanctioned by good motives. It is noteasy in other cases to make breaches in the Con-

stitution, but this may be tolerated when pur-poses of corruption and oppression are not sup-posed to be intended, when a.solemn duty only issupposed to prompt a little largeness of construc-tion, some straining of the Constitution for a pur-pose of high patriotic duty, which disguises thedanger of the example. But breaches in the Con-stitution once made, others are more easy; andsoon its enemies, with the worst purposes, rushin to its destruction. As to the necessity in fact, orratheras to tlie danger to the country ofpermittingto go at large those persons who have been ar-rested by order of various military men under thealleged authority of the PresidentI know manyof these cases, and can confidently say that manyof the persons arrested are wholly without anygeneral personal influence for good or for evil;and that they will derive any political import-ance which they may acquire solely from the blun-ders by which they have been made into polit-ical martyrs. Many of them covet political in-fluence no more than they do the restraints upontheir liberty. They wonder at the baseness of theunknown informer and the folly of the zealousagent of the Executive; butare not the less indig-nant at the disregard of law and constitutionalprivilege which leaves them without the time-hon-ored remedy for the wrong they suffer in the de-privation of their liberty. ^So too, sir, these domiciliary visits, which an-equally in violation of a provision of the Consti-tution, are sought to be justified by necessity.Now, let us see where these things are done.Nowhere, so far as I am informed, except in theState of Maryland, unless there be some excep-tions in the State of Missouri. I believe therehave been some in that State. I recollect to haveseen one or two cases of a suspension of the habeascorpus there; but chiefly it has been exercised inMaryland, a loyal Statea State proved in its loy-alty; a State whose remarkable quiet note, underall illegal and oppressive practices, is the best proofshe could give of her loyalty and her submissive-ness. Indeed whatever of disloyalty there maybe in the State of Maryland to the Union grow^ outof these very abusesthe suspension of the habeascorpxis by executive authority, and these unneces-sary, sometimes absurd, and always irritatingdomiciliary visits and searches, which yield nopublic benefit whatever, and tend only to irrita-tion, oppression, and mischief. 'n

It was but the other day that some officer ofvolunteersI do not knov whomarched somethree hundred of his men from a ]X)int in one ofthe counties in Maryland to another, a little vil-lage, wlier* there are about the same number ofresidents, of every description. This little villaget'liund itself invested by three hundred armed menearly in the morning. There was a double object:to search for arms, which were not to be found;to search houses where there were no arms; andto arrest one party, perhaps two, one of whomwas arrested and carried to a military camp out of

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the county. Well, sir, two houses were partic-! ularly designated as ]iroper to be searched. Oneof them was the house of a gentleman of the barof distinguished ability and liigh cultivation; andthough I believe he is an extreme southern man


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6for that region of Maryland, he nevertheless holdsthis doctrinethat there can be no greater absurd-ity possible, in the State of Maryland, than tothink of getting up an organization in oppositionto the power of this Government, and in violationof its constitutional authority. He has strongsouthern sympathies; that is about the amountofit. His house was searched from top to bottom bya detective police officer, who happened to be oneof these three hundred men marched to that point.They found nothing, simply because there was noconspiracy, no gathering of arms for rebellious])urposes, no intention on his part to engage inany secret organization against the Government.Nevertheless, he felt this searching of his houseto be an injustice, an affront, and an oppression.The other was the case of an old gentleman ofover eighty years of age, who is now and alwayshas been, the strongest Union man of the county.He was lying at the time on a sick bed, fromwhich his family fear he may never rise. Theladies met the officer at the door, and felt very

jmuch disposed to resist, if it had been in their Ipower; but finally, when told that his object was !to search for arms, answered promptly: " There

{are two guns here; one is a bird gun." " That 1do not want," said the officer. "Then there isanother gun lierea drilling gun." "Ah! thatis what 1 want. 'i "Very well," answered one 1of the ladies; " I pledge you my honor I will

jbring it to you in two or three minutes; but do\not come into the house, for Heaven's sake." It i

so happened that a company oflitlle boys of eight, iten, or twelve years, were playing the military,and drilling with wooden guns; and one of thesepoor little wooden guns was the trophy which the 'lady brought to the officer, very much to his mor-tification. I believe he did not care about receiv-ing it, though she insisted upon his taking it. iThere are two cases. Who can suppose that any honest, loyal citizen, had given intbrmationagainst these two gentlemen? Is it not palpablethat it was owing to the malicious, wanton, andwicked interference of some base mischief-maker,that the military were dragged some twenty miles,and marched back the same distance, for the pur-pose of searching these two houses, and lookinginto a little village armory, where they did notget a solitary gun, I believe?_ Sir, these things have been repeated elsewhere.In my own neig-hborhood, three or four hundredmen, who had gone over in a steamboat from An-napolis to one of the. country districts, marchedinto the town of Easton, and on their way, meet-ing two gentlemen standing at a gate, arrestedthem, and said: " you must come and march withus." " Why?" They chose to give no answer, iexcept to say, that they understood there are se-cessionists in the town, and if they chose to fireupon them, these gentlemen should be in the frontranktake the fire first; and thus, two men, of

jwhom they knew nothing, and who, unquestion-

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ably, were not concerned in any treasonable act,

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were thus wantonly arrested and marched fromj

their residence to the town, to be contemptuouslydismissed. An armory, belonging to the State, 'was searched and the arms taken. There weresome arms, I suppose not more than two or three

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hundred guns in all, many of which were of littlevalue, being old, and having been there from timeimmemorial, with some cannon. Two of these be-longed to the commissioners of the county, andhad been purchased in the year 1832, just aftera memorable event in Virginia, and were in-tended for the defense of the county against in-ternal foes.

Sir, these are but a few of the instances that haveoccurred. I have known houses to be broken open,wardrobes^and bureaus to be rudely searched, andyoung men to be arrested, because they talkedsaucily. They were not more mutinous, I pre-sume, than poor Jenks, whom the privy councilput in prison for talking mutinously at Guildhall,when he wanted to have a petition presented tothe King. These young men, without public in-fluence, without that position which gives controlof society, without the ability to command theservices ofa single man in any organization againstthe Government, are seized and taken away fromtheir business, one from his farm, another fromhis store, and carried off to Fort McHenry, orsome other military station, and lodged there,without warrant in form of law, or upon affidavit,without even a decent ground of suspi


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the organization which followed it was dissipated.But 1 do not think that the disturbances of tiiatdaythe attack of the rioters upon the Massa-chusetts soldiers and the subsequent proceedingscan, without the grossest outrage, be made thepretext for a series of aggressions upon the con-stitutional rights of tiie people throughout theState. There was a single, unorganized populartumult on the 19th of April. Senators will rec-ollect that the mob on that occasion were not or-ganized into an armed force. They were armedwith paving stones and brickbats. Those are notthe weapons used by conspirators who are organ-ized for the deliberate purpose of overthrowing agovernment. As for the few pistols that appearedthere, they will be found in all tumultuous assem-blages that grow into riot. And the after proceed-ings by the authorities, however much their pro-priety may bo doubted, had at least one effect:that of reducing, by the military organization thatfollowed , the tumultuary elements of the State intosuch a condition that they could be controlled,which, without that military organization, I verymuch fear would not have been the case, and thenthe evil might have been much more serious to theGovernment, the people of Baltimore, and theState of Maryland. Be that as it may, I do notdefend that proceeding or palliate it; but Ldo saythat however much gentlemen may condemn thatemeute in Baltimore, it was punished severely onthe spot; for the blood which 'flowed then wasmore that of the people of Maryland engaged inthe tumult than those against whom they illegallydirected the riot. The resentment which was feltin the North was natural, but it did not justifythe threat of razing the city to the ground, nordoes it justify any other proceedings than legalones for the prosecution of those concerned in it.It must be remembered, too, that the Presidenthimself was satisfied that the authorities of Balti-more had acted with perfect loyalty, and that thepopular excitement there was an unfortunate oc-currence, unforeseen by the authorities, and whichthey could not control, though the mayor, themarshal of police, and others, risked tiieir lives inthe effort to control it, and to protect the soldieryfrom the attack.Now, sir, here are the police commissioners ofthe city who have been imprisoned for a month,and during the session of the grand jury whichhave been finding bills of indictment against per-sons suspected oftreasonable practices. They havefound a number of bills (I do not remember howmany) for treason, but they have found no billagainst these gentlemen; nor have we heard, fromany source whatever, any intimation of any spe-dfic conduct of theirs which could be declared toBe illegal. On the contrary, the only intimationupon which I understand their arrest to have beenfounded, is that contained in the proclamation ofGeneral Banks on the 1st of July, in which hesays they were supposed to entertain some pur-pose not known to the Government, but believed10 be detrimental to its peace and security. Ithink that is the language. I know I am right inregard to the other words" some purpose notknown to the Government." I understand thatGeneral Banks admitted that there was no chargre

affecting the integrity of these gentlemen; thatthey had been arrested rather with a view to pros-pective events than for anything then done bythem.*f\.nd yet, sir, not only are these gentlemenstill suffering illegal confinement, but I see by thepapers of the morning that they are now beingtransported from the State of Maryland to somenorthern fortress, where they are to be deprivedof the sympathy and service of their friends, tornfrom the partial associatioq of their families hith-erto permitted, and doomed to imprisonmentamong strangers, where kindred and friends canno longer cheer and sustain them. Why is this.'What prospective event makes this necessary.'It is most unusual, extraordinary, and I thinkoppressive. Partisans of the Administration inMaryland may defend it; but no one else, how-ever earnest and ardent in his attachment to theconstitutional union of the States, can be other-wise than indignant.Now, sir, this police organization is a part ofthe State system. With as much authority mightthis Go^rnment undertake to suppress the StateLegislature itself, and put its members in militaryjails. As well might they suppress the wholeorganization of the different departments of thegovernment of the State of Maryland. The Stateis prostrate this moment at the foot of the exec-utive power of the United States, and that for noreason that I can perceive, except the fact of theemeute of the 19th of April. Certainly no con-duct on the part of the State of Maryland sincethen has caused any apprehension or surmise,that such a state of things prevails there as wouldjystify the violation of the Constitution and thesuspension of the writ of habeas co-pus, ajad theother oppressions which I have described.Mr. President, there are other things to whichI should desire to allude at this time, but, as theSenate perceive, I am laboring under difficultieswhich make it very arduous for me to make anyremarks at all. Nothing but a deep sense of theduty which I owe to my constituents, and theknowledge that it was expected of me that Ishould say something on this subject, has inducedme to trouble the Senate at this time. I shall, ofcourse, not vote for the joint resolution; and themore, because I believe that, if these things whichhave been done by the Executive are legal, thereis no necessity for Congress to undertake to vali-date or ratify them; and, if they were illegal ayd {unconstitutional, no p.ower of this Congress ca^ .-^give them any authority whatsoever. Congress "may pass indemnity bills; they may indemnifytheir officers who violate the law by paying allexpenses whicti may be incurred ; but they cannotmake an illegal and unconstitutional thing legalby a declaration that it is so. That is impossible.The doctrine I hold, as to the suspension of thehabeas corpus, is sustained by the highest judicialauthorityby Chief Justice Marshall, JusticeIredell of the Supreme Court, Judge Story, andby the present pure and able Chief Justice. Ithas never been questioned by any known juristof eminent character, unless there be one excep-tion in a northern State; and it has been the re-ceived doctrine from the origin of the Governmentto the present day.


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LIBRARY OF CONGRESS

James Pearce

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