Part 195

“ART. 4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

“ART. 5. No person shall be held to answer for a capital, or otherwise infamous crime, unless upon a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

“ART. 6. 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 in his defence.”

It is obvious that most of the privileges intended to be secured by these articles to our citizens have recently been denied to some of them, at the point of the bayonet, and under circumstances of peculiar violence. It may, indeed, be said that the privilege of the writ of habeas corpus was not denied in the first instance; that it could not be said to be suspended until the injured persons were placed in a situation which entitled them to demand it from the judicial power of their country. It is true that, notwithstanding inter arma silent leges, although the laws were silent amid the thunder of arms, and although a thousand terrors hovered around those who dared to exercise their professional duties in support of the constitutional rights of the citizen, a writ of habeas corpus was claimed and obtained; and I had supposed that the very singular return which is said to have been made to the writ was placed on our official files. On searching them, however, I do not discover it; but it has been published in all the newspapers, and a copy of it is now before me, which I will read:

“The undersigned, commanding the Army of the United States, takes on himself all responsibility for the arrest of Dr. Erick Bollman, on a charge of misprision of treason against the United States, and has adopted measures for his safe delivery to the Executive of the United States. It was after several consultations with the Governor and two of the judges of this Territory that the undersigned has hazarded this step for the national safety, menaced to its base by a lawless band of traitors, associated under Aaron Burr, whose accomplices are extended from New York to this city. No man can hold in higher reverence the civil institutions of his country than the undersigned, and it is to maintain and perpetuate the holy attributes of the constitution against the uplifted hand of violence that he has interposed the force of arms in a moment of extreme peril, to seize upon Bollman, as he will upon all others, without regard to standing or station, against whom satisfactory proofs may arise of a participation in the lawless combination.

“JAMES WILKINSON.

“HEADQUARTERS ARMY OF THE U. S.,

“New Orleans.”

Here is a return, not of obedience to the laws, and high reverence for civil institutions, but of disobedience and defiance. The constitution is violated in order to preserve it inviolate! Prostrated in the dust by military power, for the purpose of maintaining and perpetuating its holy attributes. And what great national object was to be accomplished by such extraordinary measures? What necessity could exist of seizing one or two wandering conspirators, and transporting them fifteen hundred or two thousand miles from the constitutional scene of inquisition and trial, to place them particularly under the eye of the National Government, when, if the opinion of the officer himself was correct, it would immediately become the duty of that Government to suffer them to go at large? In regard to one of them, the General was uncertain whether he had committed a major or a minor crime; and the other he explicitly pronounces, as we learn from our official documents, guilty of misprision of treason, at all events a bailable offence. He says, “from the documents in my possession and the several communications, verbal as well as written, from the said Dr. Erick Bollman, on this subject, I feel no hesitation in declaring, under the solemn obligation of an oath, that he has committed misprision of treason against the United States.” Surely it is desirable to provide against the recurrence of scenes of this description. Or shall it be admitted that the whim, the caprice, the passion, or the ambition of a martial chief, may supersede at will the most important checks and safeguards of the constitution?

Mr. J. RANDOLPH introduced his speech in favor of the resolution by observing, that he understood the question before the House to be, whether they would refer to a Committee of the Whole a motion proposing an inquiry whether further legal provision be not necessary to prevent violations of the writ of habeas corpus.

How long it had been the fashion to debate the merits of a subject on a simple motion to commit, it was not material to inquire. He believed it had commenced the present session.

Mr. R. then observed that he would proceed to answer some objections which had been yesterday offered against the resolution, and state the reasons which induced him to support it, come from whence it may. The first objection which he heard was, the quarter whence the resolution came. Permit me, said Mr. R., to remind the House that if those who have been called into public life on account of their professed attachment to correct principles, ever quit the ground of trial by jury, the liberty of the press, and the subordination of the military to the civil authority, they must expect that their enemies will perceive the desertion and avail themselves of the advantage. Can they who thus desert their old principles blame others for assuming the popular ground, which they have abandoned? Whoever stands forward in defence of the constitution, and the rights of the people, shall have my support quo ad hoc.

We have now on our tables official information from the President of the United States, that the privilege of the writ of habeas corpus has been denied and the constitution violated. And will you attend to reports from your Committees of Claims, of Commerce and Manufactures, of Ways and Means, and leave the constitution and the rights of the people to shift for themselves? There is abundant time. Congress can meet again after the fourth of March, and to postpone or delay a subject which affects the vitals of the State on account of a press of private or local business, would be a dereliction of our duty and of our oaths. Away then with such objections.

As to the objection that the subject of habeas corpus is now, sub judice, in the court below, no one thinks of a law which shall have a retro-active operation. I trust in God that no such ex post facto provision will be agreed to as was foisted into the bill which came from the Senate, to suspend the habeas corpus, and which was intended in a side way to cover with a mantle the most daring usurpation which ever did, will, or can happen, in this or any country. There was exactly as much right to shoot the persons in question as to do what has been done.

It has been contended that any measures on the part of this House will give a bias to the proceedings which have been instituted in the courts. Let me ask, what official notice we have of any such proceedings? But disdaining such a shelter, though it has been resorted to on the other side, it is sufficient to observe that a man has only to break the law or constitution in the beginning of a session, and then forsooth you are to be foreclosed from legislating on the subject, because an instance has recently occurred to show the necessity of legislative provision.

Mr. R. said this was the first time in his life that he had heard it asserted that no law ought to be passed to punish any offence, because that offence had recently happened. He hoped he should never hear again such a reason delivered. The Romans, believing the crime impossible, had no law to punish parricide, till a case occurred, which proved their mistake. What would you think of Cato or Cicero rising in the Senate of Rome, and urging such a reason against a law for the punishment of this crime?

In the discussion of this simple motion to refer the resolution to a committee for inquiry, which I should have supposed would have been carried without any objection at all, hints of indemnity, I suppose to try the public pulse, have been thrown out. Permit me to say that bills of indemnity are not known to the constitution. If the time ever arrives when the representatives of the people vote the public money to indemnify those who break the constitution, we shall indeed become homines servile paratos, and fit for any Government and for any state of society, however despotic or barbarous. If ever the minions of the Executive, or the Legislature, whether civil or military, are indemnified for their outrages out of the public Treasury, the constitution must have arrived at its last crisis.

It has been insinuated that certain gentlemen in this House lean too much towards standing armies, &c. Agreed. But in advocating an increase of the public force, my object was to chastise an insolent foe, not to employ it against our own citizens and to substitute it in lieu of the civil authority. My dread of standing armies has been more than a hundred times increased in consequence of the services to which our present little force has been put. From such armies good Lord deliver us!

I hope the committee to whom this subject may be referred will not forget to prevent a man from being embarked on board a shallop, and transported one thousand or two thousand miles for trial. For I have heard a law officer of the United States contend that a man may be arrested in one of the territories, and a trial had in any part of the country, wheresoever he may be brought. If this abominable doctrine be supported by law, it is high time to correct it. The constitution, in an article amendatory, declares that unusual punishments shall not be inflicted. Transportation, even after conviction, is an unusual, cruel, and severe punishment; but here it has been inflicted even before a conviction, and before any trial of the delinquents.

The court of Orleans has the same power as the district court of Kentucky, which is invested with the powers of a circuit court. If the district court of Kentucky has jurisdiction of treason, which no man ever doubted, it follows that the court of Orleans has the same authority.

When the constitution gave to Congress exclusive jurisdiction over a district ten miles square, it filled the friends of liberty with alarm. But no man then dreamed that this blot on the map, this nondescript region, a King’s Bench was to be established for the trial of delinquents against the Government, collected from all parts of the country. The inhabitants of this miserable heath, men held in a state of bondage to which no man would submit, who have no voice in electing rulers of the country, are destitute of the right of self-government--these men are made the judges and jurors to try the freemen of America. Were I on trial, I would challenge the jury. They are not qualified for this office; they are not my peers. The people here must be the tools and expectants of ministerial favor. Let them move in their own humble sphere, but let them never dare to touch a charge of treason.

In the Declaration of Independence, transportation for trial is alleged as one of the grievances imposed by the British Government on the colonies. Now it is done under the constitution, and under a republican Administration, and men are transported without the color of law, nearly as far as across the Atlantic.

I make no profession of sympathy for the men who have been denounced as traitors. I argue on the supposition that they are traitors; there is no need of much exertion in behalf of good men. Attacks on the liberty of the people are, as has been stated before, made always in the persons of the vile and the worthless. But when precedent is once established in the case of bad men, who, like pioneers, go before to smooth the way, good men tremble for their safety.

Mr. R. observed that he would not say much of the Commander-in-chief. The least said, till they knew all, was the best. He had always thought that there were more rogues than one. This business of canonizing and sanctifying men before they are dead, he did not like. In the State of Virginia they had been compelled to change the names of several counties. There was a time in which the name of Arnold might have been preferred, and perhaps there may now be places in the United States which derive their names from Burr.

Mr. R. could not admit the jesuitical casuistry which had been displayed with regard to an oath. If a man breaks the constitution, which they were all sworn to support, punish him. If the violator be Washington, Franklin, or Jefferson, Mr. R. would punish him, and he would also say, that no indemnity ought to be voted for him.

Mr. R. stated at some length the circumstances of the proclamation issued in England to prohibit the exportation of corn, when Chatham and Camden were in the Ministry, and who afterwards refused a bill of indemnity. Mr. R. observed that bills of indemnity were known to the English Constitution, and requisite in the case stated. But Chatham and Camden, though both the known and tried friends of liberty, here abandoned the popular ground, and rested their defence on arbitrary principles, while the wary Mansfield, an old tory and a high churchman, availed himself of the advantage, took up the cudgels for the people, and completely succeeded.

Mr. G. W. CAMPBELL said the first inquiry that naturally presents itself, in discussing this subject, is, what has occasioned the measure to be brought before the House at this time? This answer is given--the conduct of General Wilkinson, in arresting Bollman and others, at New Orleans, and transporting them to this place for trial, under military orders, in violation of the constitution and laws of the Union. Suppose this to be the case, what remedy can the Legislature apply? Does the evil complained of arise from the want of laws to protect the liberty of the individuals and punish those who violate it, or from those laws not being duly obeyed? If the evil arises from a disobedience to existing laws, no act passed by this House can afford a remedy. Those entrusted with the execution of the laws may be stimulated to carry them into effect by this transaction, and to punish the aggressors, but it is no ground upon which this House can act, and no act that we could pass could, in any degree, affect the measures that have already taken place. The principal inquiry therefore appears to be, whether there is any law to punish the commission of such crimes as General Wilkinson is charged with? There can be no doubt on this subject; there are laws in every part of the Union to punish offences. If those persons were seized and carried away without legal authority, or a just cause that would excuse the act, it will be a false imprisonment, including in it an assault and battery--an offence punishable by law in every part of the United States. The offender may be indicted, and, on conviction, fined and imprisoned according to the nature of his offence. He may also be sued by the party injured, and damages recovered in proportion to the injury sustained. This is the remedy afforded by the law in such cases, and it has been considered sufficient to correct the evil.

It has not been pretended that General Wilkinson, if he has acted in the unwarrantable manner stated on this floor, cannot be punished according to the nature of his offence; and it has already been stated that he is liable, if guilty, to be punished by indictment, and be made to answer in damages by civil suit. With regard to the violation of the constitution said to have been committed by General Wilkinson, in not obeying the writ of habeas corpus issued by the judge at Orleans, I may be permitted to observe that this part of the subject does not appear to have been well examined by those who have spoken in favor of the measure. The words of the constitution on this subject are, art. 1. sec. 9: “The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” This provision evidently relates to Congress, and was intended to prevent that body from suspending, by law, the writ of habeas corpus, except in the cases stated, and has no relation whatever to the act of an individual in refusing to obey the writ--such refusal or disobedience would not certainly suspend the privilege of that writ, and must be considered in the same point of view as the violation of any other public law made to protect the liberty of the citizen. In the present case, however, if there was a refusal to obey this writ, it was a violation of an act of Congress, establishing that part of Louisiana where this transaction took place into a Territory, which expressly declares that the inhabitants of the said Territory shall be entitled to the benefit of the writ of habeas corpus, and it is punishable as such; but it cannot be considered a breach of the constitution in any other respect than the violation of any public law made in pursuance of that constitution would be, and of course cannot require legislative interference. With regard to the other three articles of the constitution, to wit: the 4th, 5th, and 6th amendments thereto, said to have been violated by the conduct of Wilkinson, a very brief examination will show that there are provisions by law in every part of the Union to enforce obedience to those parts of the constitution and punish those who violate them. The first of these articles merely declares the right of the people to be secure in their persons, houses, &c., against unreasonable searches, seizures, &c.; and that no warrant shall issue, but upon probable cause, supported by oath or affirmation, &c. The first part of this only can relate to the present case, for it is not alleged that any warrant was issued; and every law existing in society for punishing offences against the persons and property of individuals, is calculated to enforce obedience to this provision. If a man is seized without legal authority or a just cause, cannot the offender be punished? He certainly can--and in what other way could you enforce obedience to this provision? The other two articles before mentioned can certainly have no bearing on the question before the House, they merely relate to the manner in which, and the place where offenders shall be tried--they are directory to the Legislature and to courts of justice; and it is not stated that either the one or the other have acted contrary to their provisions. No attempt to try these persons was made by General Wilkinson; he sent them to this place, they were delivered to the civil authority, and their case is now under legal adjudication. The courts of justice are the proper tribunals to decide, according to existing laws, where they are to be tried and in what manner. We are told, however, sir, it is necessary to make provision by law to enforce obedience to the writ of habeas corpus, to punish those who may refuse to grant it. With regard to the latter case, there is not the least ground of complaint--the writ has not been refused in any instance when demanded. It was issued at New Orleans, and also at Charleston, and indeed it is not pretended the civil authority have on any occasion violated this writ. It has, on the contrary, yielded the most prompt obedience to it in every instance.