or any other subject. I desire to speak out precisely what I as an honest man do believe. I believe that as yet there is no necessity for the employment of negroes for the purpose of suppressing the rebellion; but if the necessity shall exist hereafter, we have a perfect right to employ their services; nay, more, it will be our bounden duty to do so. I would rather that a rebel master should fall by the hand of his slave than that he should live to overthrow my Government, or to destroy the life of my brother upon the battle field. Gentlemen who are so fastidious in reference to the means which it is proper to employ for the purpose of putting rebels out of existence, it seems to me are hardly in earnest in wishing them destroyed at all. I am willing to employ any agency-the white man, the negro, the cannon, the musket. I would invoke, if it were not impious, any power in God's physical universe. I would blast them with lightning; I would rain upon them the showers of fire and brimstone for which they are now as ready as Sodom and

Gomorrah were in the olden times."

Mr. Wright. of Indiana, followed, saying: "Men do not seem to realize the condition of things in the country, and the most improper appeals are made to the ignorant and the unsuspecting, which alarm their fears on this subject. In the dark days of '76, General Lee wrote to James Bowden, president of the Massachusetts council:

We must save the community, in spite of the ordinances of the legislature. There are times when we must commit treason against the laws of the State, for the salvation of the State. The present crisis demands this brave, virtuous kind of treason.

"No statesman of this day would be willing to use language so strong as that which one of Washington's generals used in the war of the Revolution; but occasions arise when arrests become a necessity which cannot be disregarded without an impeachment of fidelity to the best interests of the commonwealth; and I am not disposed to yield the credit to the Republican party of originating a policy as bold as it is necessary, for in the despondent days of our infant struggle for liberty it was justified. Jefferson and Jackson subsequently demonstrated that it had their sanction, and it ever has had the approval of old-fashioned democracy. General Jackson suspended the liberty of the press in New Orleans, and he kept the entire city and subarbs under martial law after the British had left the coast. He arrested Judge Hall for issuing a writ of habeas corpus in favor of a French subject who had been seized by General Jack son's orders; and a recent Congress of the United States, by its legislation, commended that exercise of authority. Firmness and promptitude, fearlessness in assuming responsibility when his country was in an emergency, were among the prominent traits of his character, which secured the deep devotion of the democracy, and the earnest and enthusiastic regard which was akin to idolatry.

"Mr. Jefferson sustained General Wilkinson for suspending the habeas corpus in New Orleans on the occasion of certain military arrests of persons who were suspected of complicity in Burr's expedition; thus justifying the setting up of military authority over the jurisdiction of the courts in times of public danger. As late as the 3d of February, 1807, in a letter to Governor Claiborne respecting Burr's conspiracy, he wrote:

On great occasions, every good officer must be ready to risk himself in going beyond the strict line of law, when the public preservation requires it. His discretion in his ultra-legal proceedings, and no indulmotives will be a justification, as far as there is any gence of private feelings.

"I call the attention of senators to this lan

guage, and to the time and circumstances under which it was used. That it was not a rebellion of one third of the entire republic against its Government. The straits of the Union were not then so desperate. On that occasion a mere handful of men, starting on a distant expedition, were arrested and brought to trial. Now the conspiracy is more extended, the interests at stake are more vital, and the emerWilkinson, of the same date, he says: gency more imperious. In a letter to General

adding to them Burr, Blennerbasset, and Tyler, should Your sending here Swartwout and Bollman, and they fall into your hands, will be supported by the public opinion."

"There is another passage in this letter which I may be justified in reading in this connection. Its appropriateness will be felt:

The Feds, and the little band of Quids, in opposition, will try to make something of the infringement of liberty by the military arrests and deportation of citizens; but if it does not go beyond such offenders as Swartwout, Bollman, Burr, Blennerhasset, Tyler, &c., they will be supported by the public approbation.

"May I not, Mr. President, slightly alter the language of Jefferson of that day, and by a paraphrase adapt it to the present, and say that those who think more of party than of country, who seek to make political capital out of every act of the Government, may try to make something of the political arrests that have been made, but if it does not go beyond such offenders as Governor Morehead, Buckner, Wallis, and their compeers, they will be supported by the public approbation?

Mr. Field, of New Jersey, said: "Mr. President, the motion is to strike out the third section of this bill. There are two objections to the provisions of that section. The first is, it takes for granted that the power of suspending the privilege of the writ of habeas corpus is conferred by the Constitution upon Congress alone; and then it proposes that Congress should delegate to the President, not only the power of suspending the writ, but also of determining whether the exigency has arisen which would justify such a suspension. Both these objections, I think, are well taken. I hold that the Constitution of the United States confers upon the President, and not upon Congress, the

power of suspending the privilege of the writ of habeas corpus; but if mistaken in this, I hold that Congress has no authority to delegate to the President the exercise of such a power." He then proceeded to explain his views at much length, and thus stated his conclusions: "I think, sir, I have established that there is nothing in the practice or in the theory of the British constitution; there is nothing in the position which this clause occupies in our Constitution; there is nothing in the history of this clause in its passage through the Convention, and there is nothing in the omission of all reference to legislative power that can furnish any argument in favor of this power being intended to be a legislative power. And now, Mr. President, it remains only to inquire what is the nature of this power? Is it an executive power, or is it a legislative power? If it is an executive power, then I insist that the only possible construction that can be put upon this clause of the Constitution is that it was designed to give the power in question to the President. In order to judge of the nature of the power, we must ascertain when it is to be exercised. It is to be exercised only in two cases, rebellion and invasion. First, in case of rebellion-not a mere local sedition, not insurrection only, which is opposition to some particular law, as the whiskey insurrection for instance, but rebellion, which involves the overthrow of the Constitution and Government itself; which is an opposition to all laws. Second, invasionnot merely foreign war, but foreign war accompanied by invasion, the tendency of which, in like manner, would be the overthrow of the Government, Constitution, and laws.

"Now, whose duty is it to preserve the Government, protect the Constitution, and execute the laws? The President, by his oath of office, swears that he will preserve, protect, and defend the Constitution of the United States; and then it is made his duty to 'take care that the laws be faithfully executed.' Rebellion is resistance to these laws. Rebellion is an attempt to overthrow this Constitution and Government. Who, then, is competent to decide whether the exigency has arisen which will justify the suspension of the writ of habeas corpus? Who but the President alone? Congress may not be in session. For nine months out of the twelve, every other year, Congress is not in session; and yet the idea is that the framers of this Constitution meant to confer upon that body alone the power of suspending the writ of habeas corpus. Suppose Congress were in session, how could that body know whether the exigency had arisen? How could Congress know whether the execution of the laws had been resisted? They would have to depend upon the President for the information upon which they were to act; and then, while a bill for the purpose of suspending the privilege of the writ of habeas corpus was making its way through both Houses, every individual engaged in a conspiracy for the overthrow of the Gov

ernment might be at the distance of a thousand miles from the seat of Government. How utterly impossible, then, would it be for Congress to exercise such a power as this! This power, I admit, is a high, transcendent power, It is a power which ought never to be exercised except upon the most solemn, pressing, and argent occasions. But, sir, it is a power the exercise of which may be absolutely essential to the very existence of the Government; and in order that it should be efficacious, in order that it should accomplish the end for which it is designed, it must be exercised with the utmost promptitude and vigor. The slightest delay may frustrate entirely the objects sought to be accomplished by it. The idea, then, that a power of this character, which depends for its successful exercise on the utmost possible promptness and alacrity, should be exercised by Congress and not by the President, is a reflection, it seems to me, upon the wisdom of those who framed this instrument; it is an impeachment of their character, which I, for one, am not willing to make."

Mr. Saulsbury, of Delaware, followed on the other side. The positions which he took were that the President had not the power to suspend the privilege of the writ, but that Congress alone had the power. Reviewing the rights of English subjects, and of the American colonists, he inferred that the framers of the Constitution did not intend to abridge their liberties by conferring power upon one man to do so, whenever he should adjudge the public safety should require it.

He thus argued: "Never having known the privilege of suspending a law enacted by the legislative agents of the people, other than as a legislative privilege, it is not to be presumed that they intended it should be otherwise under the system of government which they framed. In order to the existence of this power in the executive, it must be shown positively that the Constitution confers it upon him. Under the Constitution, and independently of it, the citizen is entitled to freedom from imprisonment, unless in accordance with the law of the land. The power to imprison is nowhere in the Constitution given to the President, either for or without cause. He can only execute, not make the law. He shall take care that the laws be faithfully executed,' not that they shall not be executed, by reason of his having assumed to suspend their execution; and he shall use all the means necessary and proper, which have been conferred upon him by the Constitution or by Congress, not by means usurped by him independently of the Constitution or act of Congress. He is to use the means given to execute, not make the means with which to execute. Suppose nothing had been said in the Constitution about the suspen sion of the privilege of the writ of habeas corpus, would the President have a right to suspend the writ, which might, nevertheless, have been provided for by act of Congress? Surely

not; and why? Because such act, being the act of the legislature, could only be suspended by an act of legislation. Can the provision of the Constitution that the privilege of the writ, which the Constitution contemplated the Congress would provide, shall not be suspended unless in certain cases, possibly be regarded as conferring a power on the President, and on no one else, to suspend? If the Constitution had been silent in reference to the suspension, Congress might have passed the bill providing for issuing the writ or not, as they deemed proper; and having passed it, they could have repealed or suspended it at pleasure. Does the fact that it is provided that it shall not be suspended unless in case of rebellion or invasion deprive Congress of the power of suspension in the case of invasion and rebellion-the cases where suspension is not prohibited-and confer such power on a coördinate branch of the Government, which, but for those restrictive or prohibitory words, no one contends it would have possessed?

"It will not be denied that in England, Parliament alone can suspend or legalize the denial of the privilege of this writ. But it is contended that here, under our Constitution, the act of suspension is executive in character, and not legislative, The advocates of this view of the question contend, in the language of Mr. Horace Binney, that, the power to imprison, and to deny or delay discharge from imprisonment, is an executive power,' and that the warrant of arrest, with the order that the party's privilege be denied for a season, is suspension under the Constitution.' Here is the assumption upon which the whole argument is based. Has the President the authority under the Constitution to arrest the citizen for any cause whatever, unless that power is given in the clause relating to the suspension of the privilege of the writ of habeas corpus? None whatever; because it is not among the powers conferred upon him in the Constitution, and because it is expressly provided therein that no person shall be deprived of his liberty without due process of law. Due process of law relates to arrest as well as to trial. Arrest cannot be made except upon warrant, supported by affidavit, any more than can conviction be had except upon trial by jury. The suspension of the privilege of the writ relates to a person legally imprisoned, but confers no power to imprison contrary to law. The advocates of executive despotism argue in a circle. Their argument is nothing more nor less than this: the President may arrest because he has power to suspend, and he may suspend because he has power to ar

rest.

"The support of the hypothesis of the power in the President to suspend, as contended for by Mr. Binney, is assumption, and assumption alone. He assumes not only that the power to imprison and to deny or delay a discharge from imprisonment is an executive power,'

but necessarily, to make his argument consistent, that this executive power is with the President. The assumption is without warrant, from the fact, as we have seen, that the President is not by the Constitution authorized to arrest any one, the right to arrest being based upon affidavit and warrant, not of mere motion. The power to imprison is only executive in the sense of executing process, and the power to deny or delay discharge rests not in the volition of the person imprisoning, or having the custody of the prisoner, but in the judgment of the judge or court to whom application for release is made as to the sufficiency of the warrant when the privilege of the writ is not suspended. When suspended, the power to delay or deny a discharge rests upon the fact of such suspension by virtue of the rightful authority to suspend. The question, therefore, remains, notwithstanding the assumption of Mr. Binney, who is the depositary of this power? To support his first assumption of the power to suspend in the President, Mr. Binney further assumes that all the conditions of the exercise of the power described in the habeas corpus clause are of executive cognizance, that is to say, rebellion or invasion, and the requirement of the public safety in time of either.' What is this but assuming what requires proof? The right to determine whether the public safety requires the suspension rests necessarily with the depositary of the power. To assume that the President is to determine this fact is to assume the matter in controversy. No legislative act is necessary or proper,' says the same authority, 'to give the cognizance of these facts to the executive.' So to say in reference to the 'requirements of the public safety,' is still to assume, not to prove.

"But to follow the argument. It is said that 'no act of Parliament has ever been passed in England, or has been proposed in Congress, to take away or abridge the executive power in regard to these facts.' Why not? Because no such executive power existed, as is further evidenced from the fact that the acts passed by Parliament, or proposed in Congress, were acts of suspension or proposed suspension by those bodies themselves. If the executive had the power independently of the act of Parliament or Congress, passed or proposed, where was the necessity of passing or proposing such acts? To continue: Mr. Binney says:

All the acts of Parliament which deprive persons of the right to bail or trial in derogation of the habeas corpus act of Charles II. leave this power and discretion to the crown.

"If by the expression, 'leave this power and discretion to the crown,' is meant confer upon or confide to the crown this power and discretion, the phrase is intelligible and argumentative; but if it is thereby meant that these acts of Parliament do not take away this 'power and discretion' from the crown, it is an admission that the 'power and discretion'

are subject to the authority of Parliament to remove them from the crown. If, however, it is meant that the 'power and discretion' remain where they were, notwithstanding the acts of Parliament, the point in controversy is assumed and not proved, and makes the acts of Parliament useless things. Again he says: They cannot be taken away by Congress without invading the constitutional limits of the executive office.

"Not if they pertain to the executive office. Do they? This, again, is the point in dispute. Again he says:

They cannot be given by Congress to the executive without supererogating what the Constitution gives. "Assumption again, not proof, that the Constitution gives this power to the President.

"Again, says Mr. Binney:

The power to suspend the privilege of the writ is moreover inseparably connected with rebellion or invasion, with internal war.

"Not at all. For although the privilege cannot be suspended unless there be rebellion or invasion, yet both or either of these may exist, and the suspension be unauthorized. The power to suspend is inseparably connected with the requirement of the public safety in time of rebellion or invasion, and with it alone, for either or both rebellion and invasion may exist, and the public safety not require the suspension. Again he says:

The direction of such a war is necessarily with the executive. The office cannot be deprived of it. It is the duty of the office, in both its military and civil aspects, to suppress insurrection and repel invasion.

"Granted; but by what means? By those granted by the Constitution and conferred by Congress. Is the power to suspend the privilege of this writ granted by the Constitution? This is the matter in controversy. It must be proved, not assumed. Again, says the same writer:

The true character of every act of Parliament in this relation, and of the only bill that has ever been

proposed in Congress, has been executive, and so it

must be.

"If by this is meant that the design of every such bill has been to confer power upon the executive, or those acting under his authority, to detain in custody persons legally arrested, it is true, otherwise it is not. To say that the

character of an act of Parliament or of Con

gress is executive is an absurdity. It can only be legislative. It declares what law is or shall be. It cannot execute either judgment or power. He again remarks:

The only aspect in which an act of Congress to this effect can be regarded as legislative is as the grant or creation of authority to detain against the writ; but this is supererogation, because the Constitution gives

it.

"Again, this is the assumption of the very matter in dispute.

"I have thus far, Mr. President, considered the question, has the President the right to suspend the privilege of the writ of habeas corpus as presented in the argument of Mr. Bin

ney, because that argument is the fountain of justification to him, most generally, if not exclusively, relied upon by his friends? It is, in fact, the source from which the honorable senators from Indiana and New Jersey, who have attempted the only legal defence of the executive in this regard during this session, have drawn their materials."

Mr. Collamer, of Vermont, expressed the opinion that no bill should be passed and sent to the President for approval, in which it was necessarily implied that his decision relative to the suspension of the privilege of the habeas corpus was wrong. It would be asking-him to approve a law which declared that he had done that which he had no authority under the Constitution to do. "Is that common courtesy ! Can we get along with the Government in that way?"

He then passed to a consideration of the propositions before the Senate, the first of which was the bill under discussion, and the other a bill from the House, to indemnify the Presi dent (see page 241) for suspending the privilege of the habeas corpus, and acts done in pursuance thereof. The objections to the first he stated as above; and the latter he regarded as an act of oblivion, such as are passed occa sionally by the British Parliament. This be considered as of doubtful constitutionality, and thus proceeded: "Then I may be asked, what would you do? I would not undertake to smother up judicial inquiry at all. I do not think it necessary; neither do I think we have the power to do it, if it was necessary. It may become necessary to regulate judicial proceedings, to adapt them to the occasion which arises, and to furnish the remedies which are needed; but we should not say that a law shall be passed to make that lawful which was unlawful; we should not say in effect: Having done a thing which was not authorized by the Constitution, we tell you now that the courts shall it inquired into any way; and they, in relation never inquire into it all; we are afraid to have ousted of jurisdiction in relation to them ento the private claims of individuals, shall be tirely.' Sir, in my judgment, that is very bad policy, very bad statesmanship, and of extremely questionable constitutionality.

"Now, Mr. President, I propose that every person sued for any act done under the execu tive of the United States, by order of the President, during this rebellion, if he is sued in any State court, may, like the citizen in the case just stated, remove that case from the State court into the Circuit Court of the United States. I believe we have a right so to legis late. I have no doubt on that point. In the first place, the occasion now requires that to be done. In the next place, if gentlemen will look at the case of Cohen rs. Virginia-the case which settles the construction of the twentyfifth section of the Judiciary Act-they will find that in the opinion of Judge Story in that case, the court held that the United States, by

legislation, may order, in the first instance, all the cases which may, under the provisions of the Constitution, go into the Circuit Court, to be removed there whenever they are commenced in a State court. It is quite obvious, from the reading of the Constitution, that if you could order one of these forms removed, you could the other. I have a precedent for this. I am not going now merely by my own speculations and conjectures. I have a full precedent for it.

Now, what is the object of getting a case into the Circuit Court of the United States ? Is there any great purpose in it? We cannot but know that these very provisions of the Constitution were intended to be provided for a great occasion of this kind. The Constitution contemplates that the State courts, in great emergencies, and in relation to subjects which concern the Government of the United States, are not safe for the Government of the United States always to trust. Suits may be brought against those who have arrested and imprisoned men under the order of the executive, in various States. They may be brought before a justice of the peace, before a county court, before a circuit court, according to the various provisions of the different States as to their jurisdictions. The great question arises before them, was the President authorized to make the order on which the defendant relies? Did the Constitution authorize it? That is important, not merely to the individuals sued, but to the nation; because it is most clear, as I take it, that if the President and his subordinates, and the individuals to whom his authority has been deputed, have acted in good faith in this period of trial, at least we must indemnify them. We therefore have a pecuniary interest; and thus it becomes quite important to have some sort of check as to the measure of damages that shall be awarded, if the court should find these proceedings to be irregular. According to common-law principles, in such a case, the court should tell the jury, in my humblé judgment, if they rejected the man's defence, if he presented the order of the executive under which he acted, and the court should decide that it did not constitute a legal defence, yet, after all, the court should tell the jury: 'If you find that, though this was a mistaken authority, the man acted in good faith, or if there was a probable cause in law for making the arrest, the most you can do is to give the defendant actual damages. You will give no exemplary damages; you will give nothing by way of what is commonly called smart money; you will give nothing for attacks through the individual upon the vitals of the Constitution, or all that. These people have acted in good faith; and if in your verdict you go beyond simply paying the man the damage sustained by him by reason of his confinement for the time he was actually confined, the court will set aside your verdict.' But do we know that these State judges will do this? Have we any good

reason to have confidence in their holding over the jury the proper judicial influence to keep them in potent control? I am afraid of them. I do not like to leave our citizens and officers in their hands. I desire that the cases may be carried into our courts, into the United States Circuit Courts, in order to avail the defendants of all the advantages and protections under our Constitution which those courts give."

Mr. Collamer closed by introducing a substitute for the House bill, p. 241, which was referred to the Committee on the Judiciary, p. 256.

On the 27th of January, the Committee on the Judiciary reported this bill with an amendment striking out all after the enacting clause and substituting Mr. Collamer's bill.

Mr. Harris, of New York, moved to amend by inserting the words "civil or criminal," after the word "prosecution."

Mr. Trumbull, of Illinois, suggested numerous objections. He said: "The amendment of the committee which we are considering provides for the transfer of suits, commenced against the officers of the Government who have acted under the authority of the President in making arrests and doing other things during this rebellion, from the State courts in which they may be commenced, into the United States courts. I think that may be done. The amendment proposed by the senator from New York is to extend this to criminal prosecutions. Now, let us take a case. Suppose that a postmaster in the State of Illinois, acting, as he contends, under the authority of the Government, should get into a wrangle and kill a man, if you please; I put an extreme case to test the principle which it is sought to incorporate into this bill. That is an offence against the peace of the people of the State of Illinois; it is no offence against the United States. He is indicted by the grand jury of the proper county of the State of Illinois for murder. He files his petition stating that he was acting under the color of authority derived from the President of the United States through the Postmaster-General; that case is thereupon transferred into the United States court, and it is to proceed there in the same manner as in the State court. When you get it there, can the United States court administer the law of the State of Illinois? It is no offence against any law of the United States for one man to kill another in the State of Illinois, unless it be in the military service; unless it be in a place where the United States have jurisdiction, in some fort or arsenal. Could the United States court go on with the trial and convict him, in case it should turn out that he acted malicious

ly in the killing; and if convicted, could it sentence him to be hung? Who would have the pardoning power in such a case? Could the President pardon the offender?"

Mr. Harris, of New York, replied: "Mr. President, this power to transfer a cause from a State court to the United States courts, falls within the appellate jurisdiction of the Federal