Civil War History - Secession and PoliticsWas it Slavery, or was it States Rights? Perhaps it was the election of Lincoln? What were the real reasons for Southern Secession and what were the political issues in this time of war? Find your answers here in the Secession and Politics Disussion.
Clement Vallandigham's Response to Lincoln's Address to Congress
10 July 1861
Mr. Chairman, in the Constitution of the United States, which the other day we swore to support, and by the authority of which we are here assembled now, it is written, "All legislative powers herein granted shall be vested in a Congress of the United States." It is further written, also, that the Congress to which all legislative powers granted, are thus committed: "Shall make no law abridging the freedom of speech or of the press." And, it is yet further written, in protection of Senators and Representatives, in that freedom of debate here, without which there can be no liberty that: "For any speech or debate in either House they shall not be questioned in any other place."
Holding up the shield of the Constitution, and standing here in the place, and with the manhood of a Representative of the people, I propose to myself, to-day, the ancient freedom of speech used within these walls, though with somewhat more, I trust, of decency and discretion than have sometimes been exhibited here. Sir, I do not propose to discuss the direct question of this civil war in which we are engaged. Its present prosecution is a foregone conclusion; and a wise man never wastes his strength on a fruitless enterprise. My position shall, at present, for the most part, be indicated by my votes, and by the resolutions and motions which I may submit. But there are many questions incident to the war and to its prosecution, about which I have somewhat to say now.
Mr. Chairman, the President, in the message before us, demands the extraordinary loan of $400,000,000 -- an amount nearly ten times greater than the entire public debt, State and Federal, at the close of the Revolution, in 1783, and four times as much as the total expenditures during the three years' war with Great Britain, in 1812.
Sir, that same Constitution which I again hold up, and to which I give my whole heart, and my utmost loyalty, commits to Congress alone the power to borrow money, and to fix the purposes to which it shall be applied, and expressly limits army appropriations to the term of two years. Each Senator and Representative, therefore, must judge for himself, upon his conscience and his oath, and before God and the country, of the justice and wisdom and policy of the President's demand; and whenever this House shall have become but a mere office wherein to register the decrees of the Executive, it will be high time to abolish it. But I have a right, I believe, sir, to say that, however gentlemen upon this side of the Chamber may differ finally as to the war, we are yet firmly and inexorably united in one thing, at least, and that is in the determination that our own rights and dignities and privileges, as the Representatives of the people, shall be maintained in their spirit, and to the very letter. And, be this as it may, I do know that there are some here present who are resolved to assert, and to exercise these rights with becoming decency and moderation, certainly, but, at the same time, fully, freely, and at every hazard.
Sir, it is an ancient and wise practice of the English Commons, to precede all votes of supplies by an inquiry into abuses and grievances, and especially into any infractions of the Constitution and the laws by the Executive. Let us follow this safe practice. We are now in Committee of the Whole on the State of the Union; and in the exercise of my right and my duty as a Representative, and availing myself of the latitude of debate allowed here, I propose to consider the present State of the Union, and supply, also, some few of the many omissions of the President in the message before us. Sir, he has undertaken to give us information of the state of the Union, as the Constitution requires him to do; and it was his duty, as an honest Executive, to make that information full, impartial, and complete, instead of spreading before us a labored and lawyerly vindication of his own course of policy -- a policy which has precipitated us into a terrible and bloody revolution. He admits the fact; he admits that, to-day, we are in the midst of a general civil war, not now a mere petty insurrection, to be suppressed in twenty days by a proclamation and a posse comitatus of three months' militia.
Sir, it has been the misfortune of the President, from the beginning, that he has totally and wholly under-estimated the magnitude and character of the revolution with which he had to deal, or surely he never would have ventured upon the wicked and hazardous experiment of calling thirty millions of people to arms among themselves, without the counsel and authority of Congress. But when, at last, he found himself hemmed in by the revolution, and this city in danger, as he declares, and waked up thus, as the proclamation of the 15th of April proves him to have waked up, to the reality and significance of the movement, why did he not forthwith assemble Congress, and throw himself upon the wisdom and patriotism of the Representatives of the States and of the people, instead of usurping powers which the Constitution has expressly conferred upon us? Ay, sir, and powers which Congress had but a little while before, repeatedly and emphatically refused to exercise, or to permit him to exercise? But I shall recur to this point again.
Sir, the President, in this message, has undertaken also to give us a summary of the causes which have led to the present revolution. He has made out a case -- he might, in my judgment, have made out a much stronger case -- against the secessionists and disunionists of the South. All this, sir, is very well, as far as it goes. But the President does not go back far enough, nor in the right direction. He forgets the still stronger case against the abolitionists and disunionists of the North and West. He omits to tell us that secession and disunion had a New England origin, and began in Massachusetts, in 1804, at the time of the Louisiana purchase; were revived by the Hartford convention, in 1814, and culminated, during the war with Great Britain, in sending commissioners to Washington to settle the terms for a peaceable separation of New England from the other States of the Union. He forgets to remind us and the country, that this present revolution began forty years ago, in the vehement, persistent, offensive, most irritating and unprovoked agitation of the slavery question in the North and West, from the time of the Missouri controversy, with some short intervals, down to the present hour. Sir, if his statement of the case be the whole truth, and wholly correct, then the Democratic party, and every member of it, and the Whig party, too, and its predecessors, have been guilty, for sixty years, of an unjust, unconstitutional, and most wicked policy in administering the affairs of the Government.
But, sir, the President ignores totally the violent and long-continued denunciation of slavery and slaveholders, and especially since 1835 -- I appeal to Jackson's message for the date and proof -- until at last a political anti-slavery organization was formed in the North and West, which continued to gain strength year after year, till, at length, it had destroyed and usurped the place of the Whig party, and finally obtained control of every free State in the Union, and elected himself, through free State votes alone, to the Presidency of the United States. He chooses to pass over the fact that the party to which he thus owes his place and his present power of mischief, is wholly and totally a sectional organization; and, as such, condemned by Washington, by Jefferson, by Jackson, Webster, and Clay, and by all the founders and preservers of the Republic, and utterly inconsistent with the principles, or with the peace, the stability, or the existence even, of our Federal system. Sir, there never was an hour, from the organization of this sectional party, when it was not predicted by the wisest men and truest patriots, and when it ought not to have been known by every intelligent man in the country, that it must, sooner or later, precipitate a revolution, and the dissolution of the Union. The President forgets already that, on the 4th of March, he declared that the platform of that party was "a law unto him," by which he meant to be governed in his administration; and yet that platform announced that whereas there were two separate and distinct kinds of labor and forms of civilization in the two different sections of the Union, yet that the entire national domain, belonging in common to all the States, should be taken, possessed, and held by one section alone, and consecrated to that section which, by mere numerical superiority, had chosen the President, and now has, and for some years past has had, a majority in the Senate, as from the beginning of the Government it had also in the House. He omits, too, to tell the country and the world -- for he speaks, and we all speak now, to the world, and to posterity -- that he himself, and his prime minister, the Secretary of State, declared, three years ago, and have maintained ever since, that there was an "irrepressible conflict" between the two sections of this Union; that the Union could not endure part slave and part free; and that the whole power and influence of the Federal Government must henceforth be exerted to circumscribe and hem in slavery within its existing limits.
And now, sir, how comes it that the President has forgotten to remind us, also, that when the party thus committed to the principle of deadly hate and hostility to the slave institutions of the South, and the men who had proclaimed the doctrine of the irrepressible conflict, and who, in the dilemma or alternative of this conflict, were resolved that "the cotton and rice fields of South Carolina, and the sugar plantations of Louisiana, should ultimately be tilled by free labor," had obtained power and place in the common Government of the States, the South, except one State, chose first to demand solemn constitutional guarantees for protection against the abuse of the tremendous power and patronage and influence of the Federal Government, for the purpose of securing the great end of the sectional conflict, before resorting to secession or revolution at all? Did he not know -- how could he be ignorant -- that, at the last session of Congress, every substantive proposition for adjustment and compromise, except that offered by the gentleman from Illinois [Mr. Kellogg] -- and we all know, how it was received -- came from the South? Stop a moment, and let us see.
The Committee of Thirty-three was moved for in this House by a gentleman from Virginia, the second day of the session, and received the vote of every Southern Representative present, except only the members from South Carolina, who declined to vote. In the Senate, the committee of thirteen was proposed by a Senator from Kentucky [Mr. Powell], and received the silent acquiescence of every Southern Senator present. The Crittenden propositions, too, were submitted also by another Senator from Kentucky [Mr. Crittendon], now a member of this House; a man, venerable for his years, loved for his virtues, distinguished for his services, honored for his patriotism; for four and forty years a Senator, or in other public office; devoted from the first hour of his manhood to the Union of these States; and who, though he himself proved his courage fifty years ago, upon the battlefield against the foreign enemies of his country, is now, thank God, still for compromise at home, to-day. Fortunate in a long and well-spent life of public service and private worth, he is unfortunate only that he has survived a Union, and, I fear, a Constitution, younger than himself.
The border States propositions, also, were projected by a gentleman from Maryland, not now a member of this House, and presented by a gentleman from Tennessee [Mr. Etheridge], now the Clerk of this House. And yet all these propositions, coming thus from the South, were severally and repeatedly rejected by the almost united vote of the Republican party in the Senate and the House. The Crittenden propositions, with which Mr. Davis, now President of the Confederate States, and Mr. Toombs, his Secretary of State, both declared, in the Senate, that they would be satisfied, and for which every Southern Senator and Representative voted -- never, on any occasion, received one solitary vote from the Republican party in either House.
The Adams or Corwin amendment, so-called -- reported from the Committee of Thirty-three, and the only substantive amendment proposed from the Republican side -- was but a bare promise that Congress should never be authorized to do what no sane man ever believed Congress would attempt to do -- abolish slavery in the States where it exists; and yet, even this proposition, moderate as it was, and for which every Southern member present voted -- except one -- was carried through this House by but one majority, after long and tedious delay, and with the utmost difficulty -- sixty-five Republican members, with the resolute and determined gentleman from Pennsylvania [Mr. Hickman] at their head, having voted against it and fought against it to the very last.
And not this only, but, as a part of the history of the last session, let me remind you that bills were introduced into this House, proposing to abolish and close up certain Southern ports of entry; to authorize the President to blockade the Southern coast, and to call out the militia, and accept the services of volunteers -- not for three years merely -- but without any limit as to either numbers or time, for the very purpose of enforcing the laws, collecting the revenue, and protecting the public property -- and were passed, vehemently and earnestly, in this House, prior to the arrival of the President in this city, and were then -- though seven States had seceded, and set up a government of their own -- voted down, postponed, thrust aside, or in some other way disposed of, sometimes by large majorities in this House, till, at last, Congress adjourned without any action at all. Peace, then, seemed to be the policy of all parties.
Thus, sir, the case stood, at twelve o'clock on the 4th of March last, when, from the eastern portico of this capitol, and in the presence of twenty thousand of his countrymen, but enveloped in a cloud of soldiery, which no other American President ever saw, Abraham Lincoln took the oath of office to support the Constitution, and delivered his inaugural -- a message, I regret to say, not written in the direct and straightforward language which becomes an American President and an American statesman, and which was expected from the plain, blunt, honest man of the North-west -- but with the forked tongue and crooked counsel of the New York politician leaving thirty millions of people in doubt whether it meant peace or war. But, whatever may have been the secret purpose and meaning of the inaugural, practically, for six weeks, the policy of peace prevailed; and they were weeks of happiness to the patriot, and prosperity to the country. Business revived; trade returned; commerce flourished. Never was there a fairer prospect before any people. Secession in the past, languished, and was spiritless, and harmless; secession in the future, was arrested, and perished. By overwhelming majorities, Virginia, Kentucky, North Carolina, Tennessee, and Missouri -- all declared for the old Union, and every heart beat high with hope that, in due course of time, and through faith and patience and peace, and by ultimate and adequate compromise, every State could be restored to it. It is true, indeed, sir, that the Republican party, with great unanimity, and great earnestness and determination, had resolved against all conciliation and compromise. But, on the other hand, the whole Democratic party, and the whole Constitutional-Union party, were equally resolved that there should be no civil war, upon any pretext: and both sides prepared for an appeal to that great and final arbiter of all disputes in a free country -- the people.
Sir, I do not propose to inquire, now, whether the President and his Cabinet were sincere and in earnest, and meant, really, to persevere to the end in the policy of peace; or whether, from the first, they meant civil war, and only waited to gain time till they were fairly seated in power, and had disposed, too, of that prodigious horde of spoilsmen and office-seekers which came down, at the first, like an avalanche upon them. But I do know that the people believed them sincere, and cordially ratified and approved of the policy of peace -- not as they subsequently responded to the policy of war, in a whirlwind of passion and madness -- but calmly and soberly, and as the result of their deliberate and most solemn judgment; and believing that civil war was absolute and eternal disunion, while secession was but partial and temporary, they cordially indorsed, also, the proposed evacuation of Sumter, and the other forts and public property within the seceded States. Nor, sir, will I stop, now, to explore the several causes which either led to a change in the apparent policy, or an early development of the original and real purposes of the Administration. But there are two which I can not pass by. And the first of these was party necessity, or the clamor of politicians, and especially of certain wicked, reckless, and unprincipled conductors of a partisan press. The peace policy was crushing out the Republican party. Under that policy, sir, it was melting away like snow before the sun. The general election in Rhode Island and Connecticut, and municipal elections in New York and in the western States, gave abundant evidence that the people were resolved upon the most ample and satisfactory Constitutional guarantees to the South, as the price of a restoration of the Union. And then it was, sir, that the long and agonizing howl of defeated and disappointed politicians came up before the Administration. The newspaper press teemed with appeals and threats to the President. The mails groaned under the weight of letters demanding a change of policy; while a secret conclave of the Governors of Massachusetts, New York, Ohio, and other States, assembled here, promised men and money to support the President in the irrepressible conflict which they now invoked. And thus it was, sir, that the necessities of a party in the pangs of dissolution, in the very hour and article of death, demanding vigorous measures, which could result in nothing but civil war, renewed secession, and absolute and eternal disunion were preferred and hearkened to before the peace and harmony and prosperity of the whole country.
But there was another and yet stronger impelling cause, without which this horrid calamity of civil war might have been postponed, and, perhaps, finally averted. One of the last and worst acts of a Congress which, born in bitterness and nurtured in convulsion, literally did those things which it ought not to have done, and left undone those things which it ought to have done, was the passage of an obscure, ill-considered, ill-digested, and unstatesmanlike high protective tariff act, commonly known as "The Morrill Tariff." Just about the same time, too, the Confederate Congress, at Montgomery, adopted our old tariff of 1857, which we had rejected to make way for the Morrill act, fixing their rate of duties at five, fifteen, and twenty per cent. lower than ours. The result was as inevitable as the laws of trade are inexorable. Trade and commerce -- and especially the trade and commerce of the West -- began to look to the South. Turned out of their natural course, years ago, by the canals and railroads of Pennsylvania and New York, and diverted eastward at a heavy cost to the West, they threatened now to resume their ancient and accustomed channels -- the water-courses -- the Ohio and the Mississippi. And political association and union, it was well known, must soon follow the direction of trade and interest. The city of New York, the great commercial emporium of the Union, and the North-west, the chief granary of the Union, began to clamor now, loudly, for a repeal of the pernicious and ruinous tariff. Threatened thus with the loss of both political power and wealth, or the repeal of the tariff, and, at last, of both, New England -- and Pennsylvania, too, the land of Penn, cradled in peace -- demanded, now, coercion and civil war, with all its horrors, as the price of preserving either from destruction. Ay, sir, Pennsylvania, the great key-stone of the arch of the Union, was willing to levy the whole weight of her iron upon that sacred arch, and crush it beneath the load. The subjugation of the South -- ay, sir, the subjugation of the South! -- I am not talking to children or fools; for there is not a man in this House fit to be a Representative here, who does not know that the South can not be forced to yield obedience to your laws and authority again, until you have conquered and subjugated her -- the subjugation of the South, and the closing up of her ports -- first, by force, in war, and afterward, by tariff laws, in peace -- was deliberately resolved upon by the East. And, sir, when once this policy was begun, these self-same motives of waning commerce, and threatened loss of trade, impelled the great city of New York, and her merchants and her politicians and her press -- with here and there an honorable exception -- to place herself in the very front rank among the worshipers of Moloch. Much, indeed, of that outburst and uprising in the North, which followed the proclamation of the 15th of April, as well, perhaps, as the proclamation itself, was called forth, not so much by the fall of Sumter -- an event long anticipated -- as by the notion that the "insurrection," as it was called, might be crushed out in a few weeks, if not by the display, certainly, at least, by the presence of an overwhelming force.
These, sir, were the chief causes which, along with others, led to a change in the policy of the Administration, and, instead of peace, forced us, headlong, into civil war, with all its accumulated horrors.
But, whatever may have been the causes or the motives of the act, it is certain that there was a change in the policy which the Administration meant to adopt, or which, at least, they led the country to believe they intended to pursue. I will not venture, now, to assert, what may yet, some day, be made to appear, that the subsequent acts of the Administration, and its enormous and persistent infractions of the Constitution, its high-minded usurpations of power, formed any part of a deliberate conspiracy to overthrow the present form of Federal-republican government, and to establish a strong centralized Government in its stead. No, sir; whatever their purposes now, I rather think that, in the beginning, they rushed, heedlessly and headlong into the gulf, believing that, as the seat of war was then far distant and difficult of access, the display of vigor in re-enforcing Sumter and Pickens, and in calling out seventy-five thousand militia, upon the firing of the first gun, and above all, in that exceedingly happy and original conceit of commanding the insurgent States to "disperse in twenty days," would not, on the one hand, precipitate a crisis, while, upon the other, it would satisfy its own violent partisans, and thus revive and restore the failing fortunes of the Republican party.
I can hardly conceive, sir, that the President and his advisers could be guilty of the exceeding folly of expecting to carry on a general civil war by a mere posse comitatus of three-months militia. It may be, indeed, that, with wicked and most desperate cunning, the President meant all this as a mere entering-wedge to that which was to rive the oak asunder; or, possibly, as a test, to learn the public sentiment of the North and West. But however it may be, the rapid secession and movements of Virginia, North Carolina, Arkansas, and Tennessee, taking with them, as I have said, elsewhere, four millions and a half of people, immense wealth, inexhaustible resources, five hundred thousand fighting men, and the graves of Washington and Jackson, and bringing up, too, in one single day, the frontier from the Gulf to the Ohio and the Potomac, together with the abandonment, by the one side, and the occupation, by the other, of Harper's Ferry and the Norfolk navy-yard; and the fierce gust and whirlwind of passion in the North, compelled either a sudden waking-up of the President and his advisers to the frightful significancy of the act which they had committed, in heedlessly breaking the vase which imprisoned the slumbering demon of civil war, or else a premature but most rapid development of the daring plot to foster and promote secession, and then to set up a new and strong form of government in the States which might remain in the Union.
But, whatever may have been the purpose, I assert here, to-day, as a Representative, that every principal act of the Administration since has been a glaring usurpation of power, and a palpable and dangerous violation of that very Constitution which this civil war is professedly waged to support. Sir, I pass by the proclamation of the 15th of April, summoning the militia -- not to defend this capital -- there is not a word about the capital in the proclamation, and there was then no possible danger to it from any quarter, but to retake and occupy forts and property a thousand miles off -- summoning, I say, the militia to suppress the so-called insurrection. I do not believe, indeed, and no man believed in February last, when Mr. Stanton, of Ohio, introduced the bill to enlarge the act of 1795, that that act ever contemplated the case of a general revolution, and of resistance by an organized government. But no matter. The militia thus called out, with a shadow, at least, of authority, and for a period extending one month beyond the assembling of Congress, were amply sufficient to protect the capital against any force which was then likely to be sent against it -- and the event has proved it -- and ample enough, also, to suppress the outbreak in Maryland. Every other principal act of the Administration might well have been postponed, and ought to have been postponed, until the meeting of Congress; or, if the exigencies of the occasion demanded it, Congress should forthwith have been assembled. What if two or three States should not have been represented, although even this need not have happened; but better this, a thousand times, than that the Constitution should be repeatedly and flagrantly violated, and public liberty and private right trampled under foot. As for Harper's Ferry and the Norfolk navy-yard, they rather needed protection against the Administration, by whose orders millions of property were wantonly destroyed, which was not in the slightest danger from any quarter, at the date of the proclamation.
But, sir, Congress was not assembled at once, as Congress should have been, and the great question of civil war submitted to their deliberations. The Representatives of the States and of the people were not allowed the slightest voice in this, the most momentous question ever presented to any government. The entire responsibility of the whole work was boldly assumed by the Executive, and all the powers required for the purposes in hand were boldly usurped from either the States or the people, or from the legislative department; while the voice of the judiciary, that last refuge and hope of liberty, was turned away from with contempt.
Sir, the right of blockade -- and I begin with it -- is a belligerent right, incident to a state of war, and it can not be exercised until war has been declared or recognized; and Congress alone can declare or recognize war. But Congress had not declared or recognized war. On the contrary, they had, but a little while before, expressly refused to declare it, or to arm the President with the power to make it. And thus the President, in declaring a blockade of certain ports in the States of the South, and in applying to it the rules governing blockades as between independent powers, violated the Constitution.
But if, on the other hand, he meant to deal with these States as still in the Union, and subject to Federal authority, then he usurped a power which belongs to Congress alone -- the power to abolish and close up ports of entry; a power, too, which Congress had, also, but a few weeks before, refused to exercise. And yet, without the repeal or abolition of ports of entry, any attempt, by either Congress or the President, to blockade these ports, is a violation of the spirit, if not of the letter, of that clause of the Constitution which declares that "no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another."
Sir, upon this point I do not speak without the highest authority. In the very midst of the South Carolina nullification controversy, it was suggested, that in the recess of Congress, and without a law to govern him, the President, Andrew Jackson, meant to send down a fleet to Charleston and blockade the port. But the bare suggestion called forth the indignant protest of Daniel Webster, himself the arch enemy of nullification, and whose brightest laurels were won in the three years' conflict in the Senate Chamber, with its ablest champions. In an address, in October, 1832, at Worcester, Massachusetts, to a National Republican convention -- it was before the birth, or christening, at least of the Whig party -- the great expounder of the Constitution, said: We are told, sir, that the President will immediately employ the military force, and at once blockade Charleston. A military remedy -- a remedy by direct belligerent operation, has thus been suggested, and nothing else has been suggested, as the intended means of preserving the Union. Sir, there is no little reason to think that this suggestion is true. We can not be altogether unmindful of the past, and, therefore, we can not be altogether unapprehensive for the future. For one, sir, I raise my voice, beforehand, against the unauthorized employment of military power, and against superseding the authority of the laws, by an armed force, under pretense of putting down nullification. The President has no authority to blockade Charleston.
Jackson! Jackson, sir! the great Jackson! did not dare to do it without authority of Congress; but our Jackson of to-day, the little Jackson at the other end of the avenue, and the mimic Jacksons around him, do blockade, not only Charleston harbor, but the whole Southern coast, three thousand miles in extent, by a single stroke of the pen.
"The President has no authority to employ military force till he shall be duly required" -- Mark the word: "required so to do by law and civil authorities. His duty is to cause the laws to be executed. His duty is to support the civil authority."
As in the Merryman case, forsooth; but I shall recur to that hereafter: His duty is, if the laws be resisted, to employ the military force of the country, if necessary, for their support and execution; but to do all this in compliance only with law and with decisions of the tribunals. If, by any ingenious devices, those who resist the laws escape from the reach of judicial authority, as it is now provided to be exercised, it is entirely competent to Congress to make such new provisions as the exigency of the case may demand.
Treason, sir, rank treason, all this to-day. And, yet, thirty years ago, it was true Union patriotism and sound constitutional law! Sir, I prefer the wisdom and stern fidelity to principle of the fathers.
Such was the voice of Webster, and such too, let me add, the voice, in his last great speech in the Senate, of the Douglas whose death the land now mourns.
Next after the blockade, sir, in the catalogue of daring executive usurpations, comes the proclamation of the 3d of May, and the orders of the War and Navy Departments in pursuance of it -- a proclamation and usurpation which would have cost any English sovereign his head at any time within the last two hundred years. Sir, the Constitution not only confines to Congress the right to declare war, but expressly provides that "Congress (not the President) shall have power to raise and support armies;" and to "provide and maintain a navy." In pursuance of this authority, Congress, years ago, had fixed the number of officers, and of the regiments, of the different kinds of service; and also, the number of ships, officers, marines, and seamen which should compose the navy. Not only that, but Congress has repeatedly, within the last five years, refused to increase the regular army. More than that still: in February and March last, the House, upon several test votes, repeatedly and expressly refused to authorize the President to accept the service of volunteers for the very purpose of protecting the public property, enforcing the laws, and collecting the revenue. And, yet, the President, of his own mere will and authority, and without the shadow of right, has proceeded to increase, and has increased, the standing army by twenty-five thousand men; the navy by eighteen thousand; and has called for, and accepted the services of, forty regiments of volunteers for three years, numbering forty-two thousand men, and making thus a grand army, or military force, raised by executive proclamation alone, without the sanction of Congress, without warrant of law, and in direct violation of the Constitution, and of his oath of office, of eighty-five thousand soldiers enlisted for three and five years, and already in the field. And, yet, the President now asks us to support the army which he has thus raised, to ratify his usurpations by a law ex post facto, and thus to make ourselves parties to our own degradation, and to his infractions of the Constitution. Meanwhile, however, he has taken good care not only to enlist the men, organize the regiments, and muster them into service, but to provide, in advance, for a horde of forlorn, worn-out, and broken-down politicians of his own party, by appointing, either by himself, or through the Governors of the States, major-generals, brigadier-generals, colonels, lieutenant-colonels, majors, captains, lieutenants, adjutants, quarter-masters, and surgeons, without any limit as to numbers, and without so much as once saying to Congress, "By your leave, gentlemen."
Beginning with this wide breach of the Constitution, this enormous usurpation of the most dangerous of all powers -- the power of the sword -- other infractions and assumptions were easy; and after public liberty, private right soon fell. The privacy of the telegraph was invaded in the search after treason and traitors; although it turns out, significantly enough, that the only victim, so far, is one of the appointees and especial pets of the Administration. The telegraphic dispatches, preserved under every pledge of secrecy for the protection and safety of the telegraph companies, were seized and carried away without search-warrant, without probable cause, without oath, and without description of the places to be searched, or of the things to be seized, and in plain violation of the right of the people to be secure in their houses, persons, papers, and effects, against unreasonable searches and seizures. One step more, sir, will bring upon us search and seizure of the public mails; and, finally, as in the worst days of English oppression -- as in the times of the Russells and the Sydneys of English martyrdom -- of the drawers and secretaries of the private citizen; though even then tyrants had the grace to look to the forms of the law, and the execution was judicial murder, not military slaughter. But who shall say that the future Tiberius of America shall have the modesty of his Roman predecessor, in extenuation of whose character it is written by the great historian, avertit occulos, jussitque scelera non spectavit.
Sir, the rights of property having been thus wantonly violated, it needed but a little stretch of usurpation to invade the sanctity of the person; and a victim was not long wanting. A private citizen of Maryland, not subject to the rules and articles of war -- not in a case arising in the land or naval forces, nor in the militia, when in actual service -- is seized in his own house, in the dead hour of the night, not by any civil officer, nor upon any civil process, but by a band of armed soldiers, under the verbal orders of a military chief, and is ruthlessly torn from his wife and his children, and hurried off to a fortress of the United States -- and that fortress, as if in mockery, the very one over whose ramparts had floated that star-spangled banner immortalized in song by the patriot prisoner, who, "by dawn's early light," saw its folds gleaming amid the wreck of battle, and invoked the blessings of heaven upon it, and prayed that it might long wave "o'er the land of the free, and the home of the brave."
And, sir, when the highest judicial officer of the land, the Chief Justice of the Supreme Court, upon whose shoulders, "when the judicial ermine fell, it touched nothing not as spotless as itself," the aged, the venerable, the gentle, and pure-minded Taney, who, but a little while before, had administered to the President the oath to support the Constitution, and to execute the laws, issued, as by law it was his sworn duty to issue, the high prerogative writ of habeas corpus -- that great writ of right, that main bulwark of personal liberty, commanding the body of the accused to be brought before him, that justice and right might be done by due course of law, and without denial or delay, the gates of the fortress, its cannon turned towards, and in plain sight of the city, where the court sat, and frowning from its ramparts, were closed against the officer of the law, and the answer returned that the officer in command has, by the authority of the President, suspended the writ of habeas corpus. And thus it is, sir, that the accused has ever since been held a prisoner without due process of law; without bail; without presentment by a grand jury; without speedy, or public trial by a petit jury, of his own State or district, or any trial at all; without information of the nature and cause of the accusation; without being confronted with the witnesses against him; without compulsory process to obtain witnesses in his favor; and without the assistance of counsel for his defense. And this is our boasted American liberty? And thus it is, too, sir, that here, here in America, in the seventy-third year of the Republic, that great writ and security of personal freedom, which it cost the patriots and freemen of England six hundred years of labor and toil and blood to extort and to hold fast from venal judges and tyrant kings; written in the great charter of Runnymede by the iron barons, who made the simple Latin and uncouth words of the times, nullus liber homo, in the language of Chatham, worth all the classics; recovered and confirmed a hundred times afterward, as often as violated and stolen away, and finally, and firmly secured at last by the great act of Charles II, and transferred thence to our own Constitution and laws, has been wantonly and ruthlessly trampled in the dust. Ay, sir, that great writ, bearing, by a special command of Parliament, those other uncouth, but magic words, per statutum tricessimo primo Caroli secundi regis, which no English judge, no English minister, no king or queen of England, dare disobey; that writ, brought over by our fathers, and cherished by them, as a priceless inheritance of liberty, an American President has contemptuously set at defiance. Nay, more, he has ordered his subordinate military chiefs to suspend it at their discretion! And, yet, after all this, he cooly comes before this House and the Senate and the country, and pleads that he is only preserving and protecting the Constitution; and demands and expects of this House and of the Senate and the country their thanks for his usurpations; while, outside of this capitol, his myrmidons are clamoring for impeachment of the Chief Justice, as engaged in a conspiracy to break down the Federal Government.
Sir, however much necessity -- the tyrant's plea -- may be urged in extenuation of the usurpations and infractions of the President in regard to public liberty, there can be no such apology or defense for his invasions of private right. What overruling necessity required the violation of the sanctity of private property and private confidence? What great public danger demanded the arrest and imprisonment, without trial by common law, of one single private citizen, for an act done weeks before, openly, and by authority of his State? If guilty of treason, was not the judicial power ample enough and strong enough for his conviction and punishment? What, then, was needed in his case, but the precedent under which other men, in other places, might become the victims of executive suspicion and displeasure?
As to the pretense, sir, that the President has the Constitutional right to suspend the writ of habeas corpus, I will not waste time in arguing it. The case is as plain as words can make it. It is a legislative power; it is found only in the legislative article; it belongs to Congress only to do it. Subordinate officers have disobeyed it; General Wilkinson disobeyed it, but he sent his prisoners on for judicial trial; General Jackson disobeyed it, and was reprimanded by James Madison; but no President, nobody but Congress, ever before assumed the right to suspend it. And, sir, that other pretense of necessity, I repeat, can not be allowed. It had no existence in fact. The Constitution can not be preserved by violating it. It is an offense to the intelligence of this House, and of the country, to pretend that all this, and the other gross and multiplied infractions of the Constitution and usurpations of power were done by the President and his advisors out of pure love and devotion to the Constitution. But if so, sir, then they have but one step further to take, and declare, in the language of Sir Boyle Roche, in the Irish House of Commons, that such is the depth of their attachment to it, that they are prepared to give up, not merely a part, but the whole of the Constitution, to preserve the remainder. And yet, if indeed this pretext of necessity be well founded, then let me say, that a cause which demands the sacrifice of the Constitution and of the dearest securities of property, liberty, and life, can not be just; at least, it is not worth the sacrifice.
Sir, I am obliged to pass by for want of time, other grave and dangerous infractions and usurpations of the President since the 4th of March. I only allude casually to the quartering of soldiers in private houses without the consent of the owners, and without any manner having been prescribed by law; to the subversion in a part, at least, of Maryland of her own State Government and of the authorities under it; to the censorship over the telegraph, and the infringement, repeatedly, in one or more of the States, of the right of the people to keep and to bear arms for their defense. But if all these things, I ask, have been done in the first two months after the commencement of this war, and by men not military chieftains, and unused to arbitrary power, what may we not expect to see in three years, and by the successful heroes of the fight? Sir, the power and rights of the States and the people, and of their Representatives, have been usurped; the sanctity of the private house and of private property has been invaded; and the liberty of the person wantonly and wickedly stricken down; free speech, too, has been repeatedly denied; and all this under the plea of necessity. Sir, the right of petition will follow next -- nay, it has already been shaken; the freedom of the press will soon fall after it; and let me whisper in your ear, that there will be few to mourn over its loss, unless, indeed, its ancient high and honorable character shall be rescued and redeemed from its present reckless mendacity and degradation. Freedom of religion will yield too, at last, amid the exultant shouts of millions, who have seen its holy temples defiled, and its white robes of a former innocency trampled now under the polluting hoofs of an ambitious and faithless or fanatical clergy. Meantime national banks, bankrupt laws, a vast and permanent public debt, high tariffs, heavy direct taxation, enormous expenditures, gigantic and stupendous peculation, anarchy first, and a strong government afterward -- no more State lines, no more State governments, and a consolidated monarchy or vast centralized military despotism must all follow in the history of the future, as in the history of the past they have, centuries ago, been written. Sir, I have said nothing, and have time to say nothing now, of the immense indebtedness and the vast expenditures which have already accrued, nor of the folly and mismanagement of the war so far, nor of the atrocious and shameless peculations and frauds which have disgraced it in the State governments and the Federal Government from the beginning. The avenging hour for all these will come hereafter, and I pass by them now.
I have finished now, Mr. Chairman, what I proposed to say at this time upon the message of the President. As to my own position in regard to this most unhappy civil war, I have only to say that I stand to-day just where I stood upon the 4th of March last; where the whole Democratic party, and the whole Constitutional Union party, and a vast majority, as I believe, of the people of the United States stood too. I am for peace, speedy, immediate, honorable peace, with all its blessings. Others may have changed -- I have not. I question not their motives nor quarrel with their course. It is vain and futile for them to question or to quarrel with me. My duty shall be discharged -- calmly, firmly, quietly, and regardless of consequences. The approving voice of conscience void of offense, and the approving judgment which shall follow "after some time be past," these, God help me, are my trust and my support.
Sir, I have spoken freely and fearlessly to-day, as became an American Representative and an American citizen; one firmly resolved, come what may, not to lose his own Constitutional liberties, nor to surrender his own Constitutional rights in the vain effort to impose these rights and liberties upon ten millions of unwilling people. I have spoken earnestly, too, but yet not as one unmindful of the solemnity of the scenes which surround us upon every side to-day. Sir, when the Congress of the United States assembled here on the 3rd of December, 1860, just seven months ago, the Senate was composed of sixty-six Senators, representing the thirty-three States of the Union, and this House of two hundred and thirty-seven members -- every State being present. It was a grand and solemn spectacle -- the ambassadors of three and thirty sovereignties and thirty-one millions of people, the mightiest republic on earth, in general Congress assembled. In the Senate, too, and this House, were some of the ablest and most distinguished statesmen of the country; men whose names were familiar to the whole country -- some of them destined to pass into history. The new wings of the capitol had then but just recently been finished, in all their gorgeous magnificence, and, except a hundred marines at the navy-yard, not a soldier was within forty miles of Washington.
Sir, the Congress of the United States meets here again to-day; but how changed the scene! Instead of thirty-four States, twenty-three only, one less than the number forty years ago, are here, or in the other wing of the capitol. Forty-six Senators and a hundred and seventy-three Representatives constitute the Congress of the now United States. And of these, eight Senators and twenty-four Representatives, from four States only, linger here yet as deputies from that great South which, from the beginning of the Government, contributed so much to mold its policy, to build up its greatness, and to control its destinies. All the other States of that South are gone. Twenty-two Senators and sixty-five Representatives no longer answer to their names. The vacant seats are, indeed, still here; and the escutcheons of their respective States look down now solemnly and sadly from these vaulted ceilings. But the Virginia of Washington and Henry and Madison, of Marshall and Jefferson, of Randolph and Monroe, the birthplace of Clay, the mother of States and of Presidents; the Carolinas of Pinckney and Sumter and Marion, of Calhoun and Macon; and Tennessee, the home and burial-place of Jackson; and other States, too, once most loyal and true, are no longer here. The voices and the footsteps of the great dead of the past two ages of the Republic linger still -- it may be in echo -- along the stately corridors of this capitol; but their descendants, from nearly one-half of the States of the Republic, will meet with us no more within these marble halls. But in the parks and lawns, and upon the broad avenues of this spacious city, seventy thousand soldiers have supplied their places; and the morning drum-beat from a score of encampments, within sight of this beleaguered capitol, give melancholy warning to the Representatives of the States and of the people, that amid arms the laws are silent.
Sir, some years hence -- I would fain hope some months hence, if I dare -- the present generation will demand to know the cause of all this; and, some ages hereafter, the grand and impartial tribunal of history will make solemn and diligent inquest of the authors of this terrible revolution.
MOBILE REGISTER AND ADVERTISER, April 22, 1864, p. 1, c. 7
[From the Texas Telegraph.]
. . . Very well; but now to the incident foreshadowed. On a certain occasion, my friend's company was ordered out, with other forces, to check an anticipated raid of the enemy. They went, of course, and it so happened that they were then in the vicinity of Gaines' Mill, where thousands of the enemies of our country had left their imbecile bodies in the implacable arms of death. Unlike ourselves, the living had simply buried their dead on the top of the ground, or so shallowly that arm and leg bones and skulls were plenty and rather in the way. Our boys had seen nothing of the enemy. The scouts reported that nothing could be seen or heard of them. The boys were not weary, but thirsting, so to speak, for something to do, and one proposed they should have a game of ten pins. The proposition seemed ill-timed and unreasonable; so another asked, "how can this be done here, where the bones and skulls of our enemies are lying around us?" "Easy enough," replied the eccentric and original, "the thigh and leg bones scattered around will answer for pins and the skulls will suit for balls."
The strangeness of the proposition, together with an inexpressible interest all felt in it, won the day, and soon the pins were set up, and the skulls filled with sand to give them specific gravity, care being taken to select the round skulls (a rather difficult thing to find among Yankees), and thus our revellers bowled away for several hours. Just think of it! The invaders of our country having fallen in battle—their bones left by their own friends to cumber the surface of the earth, and our glorious boys meeting with these harmless relics, made them still subserve for the enjoyment of an idle hour. To tell the truth, I should like to have been there to participate. I think at every bowl I should have shouted one more cry for Liberty! and have rolled the balls with a vehemence unusual. The pastime was something so unusual, so piquant, so rich, recherche—like Byron's drinking wine from a skull—that to me doting upon graveyards and delighting in wrecks as I do, the narrative gave exquisite pleasure. This is one of the pleasant features of the Death Dance now going on. Who will get tired first?
-Tom Anchorite.
__________________ Few take the trouble to understand or to view the American scene with perspective. And we Americans love to find ourselves guilty of something. However, it is never I who am guilty, but those other Americans, the past or present government or the other political party. Americans almost never find other countries guilty. It is always ourselves or our fancied influence in other countries. Louis L'amour
Ex Parte Merryman
by Chief Justice Roger B. Taney
Maryland Circuit Court (1861)
The application in this case for a writ of habeas corpus is made to me under the 14th Section of the Judiciary Act of 1789, which renders effectual for the citizen the constitutional privilege of the habeas corpus. That Act gives to the Courts of the United States, as well as to each Justice of the Supreme Court, and to every District Judge, power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. The petition was presented to me in Washington, under the impression that I would order the prisoner to be brought before me there, but as he was confined in Fort McHenry, in the City of Baltimore, which is in my circuit I resolved to hear it at the latter City, as obedience to the writ, under such circumstances, would not withdraw Gen. Cadwalader, who had him in charge, from the limits of his military command.
The petition presents the following case: The petitioner resides in Maryland, in Baltimore County. While peaceably in his own house, with his family, he was, at two o'clock on the morning of the 25th of May, 1861, arrested by an armed force, professing to act under military orders. He was then compelled to rise from his bed, taken into custody and conveyed to Fort McHenry, where he is imprisoned by the commanding officer, without warrant from any lawful authority.
The commander of the Fort, Gen. George Cadwalader, by whom he is detained in confinement, in his return to the writ, does not deny any of the facts alleged in the petition. He states that the prisoner was arrested by order of Gen. Keim, of Pennsylvania, and conducted as a prisoner to Fort McHenry by his order, and placed in his (Gen. Cadwalader's) custody, to be there detained by him as a prisoner.
A copy of the warrant, or order, under which the prisoner was arrested, was demanded by his counsel and refused. And it is not alleged in the return that any specific act, constituting an offense against the laws of the United States, has been charged against him, upon oath; but he appears to have been arrested upon general charges of treason and rebellion, without proof, and without giving the names of the witnesses, or specifying the acts which, in the judgment of the military officer, constituted these crimes. And having the prisoner thus in custody, upon these vague and unsupported accusations, he refuses to obey the writ of habeas corpus upon the ground that he is duly authorized by the President to suspend it.
The case, then, is simply this: A military officer, residing in Pennsylvania, issues an order to arrest a citizen of Maryland, upon vague and indefinite charges, without any proof, so far as appears. Under this order his house is entered in the night, he is seized as a prisoner, conveyed to Fort McHenry, and there kept in close confinement. And when a habeas corpus is served on the commanding officer, requiring him to produce the prisoner before a Justice of the Supreme Court, in order that he may examine into the legality of the imprisonment, the answer of the officer is, that he is authorized by the President to suspend the writ of habeas corpus at his discretion, and, in the exercise of that discretion suspends it in this case, and on that ground refuses obedience to the writ.
As the case comes before me, therefore, I understand that the President not only claims the right to suspend the writ of habeas corpus himself, at his discretion, but to delegate that discretionary power to a military officer, and to leave it to him to determine whether he will or will not obey judicial process that may be served upon him.
No official notice has been given to the Courts of Justice, or to the public, by proclamation, or otherwise, that the President claimed this power, and had exercised it in the manner stated in the return. And I certainly listened to it with some surprise, for I had supposed it to be one of those points of constitutional law upon which there is no difference of opinion, and that it was admitted on all hands that the privilege of the writ could not be suspended except by act of Congress.
When the conspiracy of which Aaron Burr was the head became so formidable, and was so extensively ramified to justify, in Mr. Jefferson's opinion, the suspension of the writ, he claimed on his part no power to suspend it, but communicated his opinion to Congress, with all the proofs in his possession, in order that Congress might exercise its discretion upon the subject, and determine whether the public safety required it. And in the debate which took place upon the subject, no one suggested that Mr. Jefferson might exercise the power himself, if, in his opinion, the public safety required it.
Having, therefore, regarded the question as too plain and too well settled to be open to dispute, if the commanding officer had stated that upon his own responsibility, and in the exercise of his own discretion he refused obedience to the writ, I should have contented myself with referring to the clause in the Constitution, and to the construction it received from every jurist and statesman of that day, when the case of Burr was before them. But being thus officially notified that the privilege of the writ has been suspended under the orders and by the authority of the President, and believing, as I do, that the President has exercised a power which he does not possess under the Constitution, a proper respect for the high office he fills requires me to state plainly and fully the grounds of my opinion, in order to show that I have not ventured to question the legality of this act without a careful and deliberate examination of the whole subject.
The clause in the Constitution which authorizes the suspension of the privilege of the writ of habeas corpus is in the ninth section of the first article.
This article is devoted to the legislative department of the United States, and has not the slightest reference to the Executive department. It begins by providing, "that all legislative powers therein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." And after prescribing the manner in which these two branches of the legislative department shall be chosen, it proceeds to enumerate specifically the legislative powers which it thereby grants, and legislative powers which it expressly prohibits; and, at the conclusion of this specification, a clause is inserted giving Congress, "the power to make all laws which may be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department or office thereof."
The power of legislation granted by this latter clause is by its words carefully confined to the specific objects before enumerated. But as this limitation was unavoidably somewhat indefinite, it was deemed necessary to guard more effectually certain great cardinal principles essential to the liberty of the citizen, and to the rights and equality of the States, by denying to Congress, in express terms, any power of legislating over them. It was apprehended, it seems, that such legislation might be attempted under the pretext that it was necessary and proper to carry into execution the powers granted; and it was determined that there should be no room to doubt, where rights of such vital importance were concerned, and, accordingly, this clause is immediately followed by an enumeration of certain subjects to which the powers of legislation shall not extend; the great importance which the framers of the Constitution attached to the privilege of the writ of habeas corpus to protect the liberty of the citizen is proved by the fact that its suspension, except in cases of invasion and rebellion, is first in the list of prohibited powers -- and even in these cases the power is denied, and its exercise prohibited, unless the public safety shall require it.
It is true that in the cases mentioned, Congress is of necessity the judge of whether the public safety does or does not require it; and their judgment is conclusive. But the introduction of these words is a standing admonition to the legislative body of the danger of suspending it, and of the extreme caution they should exercise before they give the Government of the United States such power over the liberty of a citizen.
It is the second article of the Constitution that provides for the organization of the Executive Department, and enumerates the powers conferred on it and prescribes its duties. And if the high power over the liberty of the citizens now claimed was intended to be conferred on the President, it would undoubtedly be found in plain words in this article. But there is not a word in it that can furnish the slightest ground to justify the exercise of the power.
The article begins by declaring that the Executive power shall be vested in a President of the United States of America, to hold his office during the term of four years -- and then proceeds to prescribe the mode of election, and to specify in precise and plain words the powers delegated to him and the duties imposed upon him. And the short term for which he is elected, and the narrow limits to which his power is confined, show the jealousy and apprehensions of future danger which the framers of the Constitution felt in relation to that department of the Government, and how carefully they withheld from it many of the powers belonging to the Executive branch of the English Government, which were considered as dangerous to the liberty of the subject -- and conferred (and that in clear and specific terms,) those powers only which were deemed essential to secure the successful operation of the Government.
He is elected, as I have already said, for the brief term of four years, and is made personally responsible, by impeachment, for malfeasance in office; he is, from necessity, and the nature of his duties, the Commander-in-Chief of the army and navy, and of the militia, when called into actual service; but no appropriation for the support of the army can be made by Congress for a longer term than two years, so that it is in the power of the succeeding House of Representatives to withhold the appropriation for its support, and thus disband it, if, in their judgment, the President used, or designed to use it for improper purposes. And although the militia, when in actual service, is under his command, yet the appointment of the officers is reserved to the States, as a security against the use of the military power for purposes dangerous to the liberties of the people, or the rights of the States.
So too, his powers in relation to the civil duties and authority necessarily conferred on him are carefully restricted, as well as those belonging to his military character. He cannot appoint the ordinary officers of government, nor make a treaty with a foreign nation or Indian tribe, without the advice and consent of the Senate, and cannot appoint even inferior officers, unless he is authorized by an act of Congress to do so. He is not empowered to arrest any one charged with an offence against the United States, and whom he may, from the evidence before him, believe to be guilty; nor can he authorize any officer, civil or military, to exercise this power, for the fifth article of the amendments to the Constitution expressly provides that no person "shall be deprived of life, liberty or property, without due process of law," that is, judicial process.
And even if the privilege of the writ of habeas corpus were suspended by act of Congress, and a party not subject to the rules and articles of war were afterwards arrested and imprisoned by regular judicial process, he could not be detained in prison, or brought to trial before a military tribunal, for the article in the amendments to the Constitution immediately following the one above referred to (that is, the sixth article) provides:
In all criminal prosecutions, 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 defence.
The only power, therefore, which the President possesses, where the "life, liberty or property" of a private citizen is concerned, is the power and duty prescribed in the third section of the second article, which requires "that he shall take care that the laws shall be faithfully executed." He is not authorized to execute them himself, or through agents or officers, civil or military, appointed by himself, but he is to take care that they be faithfully carried into execution, as they are expounded and adjudged by the coordinate branch of the Government to which that duty is assigned by the Constitution. It is thus made his duty to come in aid of the judicial authority, if it shall be resisted by a force too strong to be overcome without the assistance of the executive arm; but in exercising this power he acts in subordination to judicial authority, assisting it to execute its process and enforce its judgments. With such provisions in the Constitution, expressed in language too clear to be misunderstood by any one, I can see no ground whatever for supposing that the President, in any emergency, or in any state of things, can authorize the suspension of the privilege of the writ of habeas corpus, or the arrest of a citizen, except in aid of the judicial power. He certainly does not faithfully execute the laws, if he takes upon himself legislative power, by suspending the writ of habeas corpus, and the judicial power also, by arresting and imprisoning a person without due process of law. Nor can any argument be drawn from the nature of sovereignty, or the necessity of government, for self-defence in times of tumult and danger. The Government of the United States is one of delegated and limited powers; it derives it existence and authority altogether from the Constitution, and neither of its branches, executive, legislative or judicial, can exercise any of the powers of government beyond those specified and granted; for the tenth article of the Amendments to the Constitution, in express terms, provides that "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."
Indeed, the security against imprisonment by executive authority, provided for in the fifth article of the Amendments to the Constitution, which I have before quoted, is nothing more than a copy of a like provision in the English Constitution, which had been firmly established before the Declaration of Independence.
Blackstone, in his Commentaries (1 Bl. Comm. 137) states it in the following words: "To make imprisonment lawful, it must be either by process of law from the courts of judicature, or by warrant from some legal officer having authority to commit to prison." The people of the United Colonies, who had themselves lived under its protection, while they were British subjects, were well aware of the necessity of this safeguard for their personal liberty. And no one can believe that, in framing a government intended to guard still more efficiently the rights and liberties of the citizen, against executive encroachment and oppression, they would have conferred on the President a power which the history of England had proved to be dangerous and oppressive in the hands of the crown; and which the people of England had compelled it to surrender, after a long and obstinate struggle on the part of the English Executive to usurp and retain it.
The right of the subject to the benefit of the writ of habeas corpus, it must be recollected, was one of the great points in controversy, during the long struggle in England between arbitrary government and free institutions, and must therefore have strongly attracted the attention of the statesmen engaged in framing a new and, as they supposed, a freer government than the one which they had thrown off by the revolution. From the earliest history of the common law, if a person were imprisoned, no matter by what authority, he had a right to the writ of habeas corpus, to bring his case before the King's Bench; and if no specific offence were charged against him in the warrant of commitment, he was entitled to be forthwith discharged; and if any offense were charged which was bailable in its character, the Court was bound to set him at liberty on bail. The most exciting contests between the Crown and the people of England, from the time of Magna Charta, were in relation to the privilege of this writ, and they continued until the passage of the statute of 31 Charles II., commonly known as the great habeas corpus act.
This statute put an end to the struggle, and finally and firmly secured the liberty of the subject against the usurpation and oppression of the executive branch of the Government. It nevertheless conferred no new right upon the subject, but only secured a right already existing; for, although the right could not justly be denied, there was often no effectual remedy against its violation. Until the statute of 13 William III., the Judges held their offices at the pleasure of the King, and the influence which he exercised over timid, time-serving and partisan judges, often induced them, upon some pretext or other, to refuse to discharge the party, although entitled by law to his discharge, or delayed their decision, from time to time, so as to prolong the imprisonment of persons who were obnoxious to the King for their political opinions, or had incurred his resentment in any other way.
The great and inestimable value of the habeas corpus act of the 31st Charles II. is, that it contains provisions which compel courts and judges, and all parties concerned, to perform their duties promptly, in the manner specified in the statute.
A passage in Blackstone's Commentaries, showing the ancient state of the law on this subject, and the abuses which were practised through the power and influence of the crown, and a short extract from Hallam's Constitutional History, stating the circumstances which gave rise to the passage of this statute, explain briefly, but fully, all that is material to this subject.
Blackstone, in his Commentaries on the Laws of England (3rd vol., 133, 134), says:
To assert an absolute exemption from imprisonment in all cases is inconsistent with every idea of law and political society, and in the end would destroy all civil liberty by rendering its protection impossible. But the glory of the English law consists in clearly defining the times, the causes and the extent, when, wherefore and to what degree, the imprisonment of the subject may be lawful. This it is which induces the absolute necessity of expressing upon every commitment the reason for which it is made, that the court, upon a habeas corpus, may examine into its validity, and according to the circumstances of the case, may discharge, admit to bail or remand the prisoner.
And yet early in the reign of Charles I. the Court of King's Bench, relying on some arbitrary precedents (and those perhaps misunderstood) determined that they would not, upon a habeas corpus, either bail or deliver a prisoner, though committed without any cause assigned, in case he was committed by the special command of the King or by the Lords of the Privy Council. This drew on a Parliamentary inquiry, and produced the Petition of Right -- 3 Charles I. -- which recites this illegal judgment, and enacts that no freeman hereafter shall be so imprisoned or detained. But when, in the following year, Mr. Selden and others were committed by the Lords of the Council, in pursuance of his Majesty's special command, under a general charge of "notable contempts, and stirring up sedition against the King and the Government," the judges delayed for two terms (including also the long vacation) to deliver an opinion how far such a charge was bailable; and when at length they agreed that it was, they however annexed a condition of finding sureties for their good behavior, which still protracted their imprisonment, the Chief Justice, Sir Nicholas Hyde, at the same time, declaring that "if they were again remanded for that cause, perhaps the court would not afterwards grant a habeas corpus, being already made acquainted with the cause of the imprisonment." But this was heard with indignation and astonishment by every lawyer present, according to Mr. Selden's own account of the matter, whose resentment was not cooled at the distance of four and twenty years.
It is worthy of remark, that the offenses charged against the prisoner in this case, and relied on as a justification for his arrest and imprisonment, in their nature and character, and in the loose and vague manner in which they are stated, bear a striking resemblance to those assigned in the warrant for the arrest of Mr. Merryman. And yet, even at that day, the warrant was regarded as such a flagrant violation of the rights of the subject that the delay of the timeserving judges to set him at liberty, upon the habeas corpus issued in his behalf, excited the universal indignation of the bar. The extract from Hallam's Constitutional History is equally impressive and equally in point. It is in vol. 4, p. 14:
It is a very common mistake, and that not only among foreigners, but many from whom some knowledge of our Constitutional laws might be expected, to suppose that this statute of Charles II. enlarged in a great degree our liberties, and forms a sort of epoch in their history. But though a very beneficial enactment, and eminently remedial in many cases of illegal imprisonment, it introduced no new principle, nor conferred any right upon the subject. From the earliest records of the English law, no freeman could be detained in prison, except upon a criminal charge or conviction, or for a civil debt. In the former case it was always in his power to demand of the Court of King's Bench a writ of habeas corpus ad subjiciendum, directed to the person detaining him in custody, by which he was enjoined to bring up the body of the prisoner, with the warrant of commitment, that the Court might judge of its sufficiency, and remand the party, admit him to bail, or discharge him, according to the nature of the charge. This writ issued of right, and could not be refused by the court. It was not to bestow an immunity from arbitrary imprisonment, which is abundantly provided for in Magna Charta (if indeed it is not more ancient), that the statute of Charles II. was enacted, but to cut off the abuses by which the government's <font color="ff0000">•</font><font color="ff0000">•</font><font color="ff0000">•</font><font color="ff0000">•</font> of power, and the servile subtlety of the crown lawyers, had impaired so fundamental a privilege.
While the value set upon this writ in England has been so great, that the removal of the abuses which embarrassed its employment has been looked upon as almost a new grant of liberty to the subject, it is not to be wondered at, that the continuance of the writ thus made effective should have been the object of the most jealous care. Accordingly, no power in England short of that of Parliament can suspend or authorize the suspension of the writ of habeas corpus. I quote again from Blackstone (1 Bl. Comm. 136):
But the happiness of our Constitution is, that it is not left to the executive power to determine when the danger of the State is so great as to render this measure expedient. It is the Parliament only or legislative power that, whenever it sees proper, can authorize the crown by suspending the habeas corpus for a short and limited time, to imprison suspected persons without giving any reason for so doing.
If the President of the United States may suspend the writ, then the Constitution of the United States has conferred upon him more regal and absolute power over the liberty of the citizen, than the people of England have thought it safe to entrust to the Crown; a power which the Queen of England cannot exercise at this day, and which could not have been lawfully exercised by the sovereign even in the reign of Charles the First.
But I am not left to form my judgment upon this great question, from analogies between the English Government and our own, or the commentaries of English jurists, or the decisions of English courts, although upon this subject they are entitled to the highest respect, and are justly regarded and received as authoritative by our courts of justice. To guide me to a right conclusion, I have the Commentaries on the Constitution of the United States of the late Mr. Justice Story, not only one of the most eminent jurists of the age, but for a long time one of the brightest ornaments of the Supreme Court of the United States; and also the clear and authoritative decision of that Court itself, given more than half a century since, and conclusively establishing the principles I have above stated. Mr. Justice Story, speaking, in his Commentaries, of the habeas corpus clause in the Constitution, says (3 Story, Comm. Const. section 1336):
It is obvious that cases of a peculiar emergency may arise, which may justify, nay, even require, the temporary suspension of any right to the writ. But as it has frequently happened in foreign countries, and even in England, that the writ has, upon various pretexts and occasions, been suspended, whereby persons apprehended upon suspicion have suffered a long imprisonment, sometimes from design, and sometimes because they were forgotten, the right to suspend it is expressly confined to cases of rebellion or invasion, where the public safety may require it. A very just and wholesome restraint, which cuts down at a blow a fruitful means of oppression, capable of being abused, in bad times, to the worst of purposes. Hitherto, no suspension of the writ has ever been authorized by congress, since the establishment of the Constitution. It would seem, as the power is given to congress to suspend the writ of habeas corpus in cases of rebellion or invasion, that the right to judge whether the exigency had arisen must exclusively belong to that body.
And Chief Justice Marshall, in delivering the opinion of the Supreme Court in the case of Ex parte Bollman and Swartwout, uses this decisive language, in 4 Cranch (8 U. S.) 95:
It may be worthy of remark, that this act [speaking of the one under which I am proceeding] was passed by the first congress of the United States, sitting under a Constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it." Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means, by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give to all the courts the power of awarding writs of habeas corpus.
And again on page 101:
If at any time, the public safety should require the suspension of the powers vested by this act in the Courts of the United States, it is for the legislature to say so. That question depends on political considerations, on which the legislature is to decide; until the legislative will be expressed, this court can only see its duty, and must obey the laws.
I can add nothing to these clear and emphatic words of my great predecessor.
But the documents before me show, that the military authority in this case has gone far beyond the mere suspension of the privilege of the writ of habeas corpus. It has, by force of arms, thrust aside the judicial authorities and officers to whom the Constitution has confided the power and duty of interpreting and administering the laws, and substituted a military government in its place, to be administered and executed by military officers. For, at the time these proceedings were had against John Merryman, the District Judge of Maryland, the commissioner appointed under the act of Congress, the District Attorney and the Marshal, all resided in the city of Baltimore, a few miles only from the home of the prisoner. Up to that time, there had never been the slightest resistance or obstruction to the process of any Court or judicial officer of the United States in Maryland, except by the military authority.
And if a military officer, or any other person, had reason to believe that the prisoner had committed any offence against the laws of the United States, it was his duty to give information of the fact and the evidence to support it, to the District Attorney; it would then have become the duty of that officer to bring the matter before the District Judge or Commissioner, and if there was sufficient legal evidence to justify his arrest, the Judge or Commissioner would have issued his warrant to the Marshal to arrest him; and upon the hearing of the case, would have held him to bail, or committed him for trial, according to the character of the offense, as it appeared in the testimony, or would have discharged him immediately, if there was not sufficient evidence to support the accusation. There was no danger of any obstruction or resistance to the action of the civil authorities, and therefore no reason whatever for the interposition of the military.
Yet, under these circumstances, a military officer, stationed in Pennsylvania, without giving any information to the District Attorney, and without any application to the judicial authorities, assumes to himself the judicial power in the District of Maryland; undertakes to decide what constitutes the crime of treason or rebellion; what evidence (if indeed he required any) is sufficient to support the accusation and justify the commitment; and commits the party, without a hearing, even before himself, to close custody, in a strongly garrisoned fort, to be there held, it would seem, during the pleasure of those who committed him.
The Constitution provides, as I have before said, that "no person shall be deprived of life, liberty or property, without due process of law." It declares 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 warrant 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." It provides that the party accused shall be entitled to a speedy trial in a court of justice.
These great and fundamental laws, which Congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the Constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.
In such a case, my duty was too plain to be mistaken. I have exercised all the power which the Constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome. It is possible that the officer who has incurred this grave responsibility may have misunderstood his instructions, and exceeded the authority intended to be given him; I shall, therefore, order all the proceedings in this case, with my opinion, to be filed and recorded in the Circuit Court of the United States for the district of Maryland, and direct the Clerk to transmit a copy, under seal, to the President of the United States. It will then remain for that high officer, in fulfilment of his constitutional obligation to "take care that the laws be faithfully executed," to determine what measures he will take to cause the civil process of the United States to be respected and enforced.
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