YALE UNIVEESITT LIBRAET

FOBMED BY
James Abraham Hillhouse, B.A. 1749
James Hillhouse, B.A. 1773
James Abraham Hillhouse, B.A. 1808
James HillJiouse, B.A. 1875
Removed 1942 from the
Manor Mouse in Sachem's Wood
GEFT OF
GEORGE DUDLEY SETMOUJR

AN

UJVDELIYERED SPEECH

ON

EXECUTIVE ARRESTS.

PHILADELPHIA:

It

AN

UNDELIVERED SPEECH

ON

EXECUTIVE ARRESTS.

PHILADELPHIA ' 1862.

TO THE READER.

There was made, in this city, on Tuesday, the twenty-
third of September last, Mr. John H. Cook, a teller in the
bank of Kensington, being the victim, one of those auda
cious arrests which have caused so much public and private
indignation. The writer of these pages was applied to,
with other counsel, to sue in his behalf out of the District
Court of the United States, for the Eastern District of
Pennsylvania, a writ of habeas corpus, which was obtained,
and the prisoner brought before Mr. Justice Cadwalader
for hearing, when, after one or two postponements at the
instance of the Government, they relaxed their grasp and
let Mr. Cook go, no reason being assigned f(?r his discharge,
as none had been given for his arrest ; and the case there
ended.' What had fallen from the Bench made it plain
enough that the learned Judge intended the question of
these Executive seizures to undergo a full examination, and
should the conclusion have been to the contrary of their
legality— of which it would be scandalous to doubt — all
knew that the mandate of that court would have been
issued as unhesitatingly against high authority as against
the poorest citizen ; and once issued, that it would have
been maintained without flinching. Under these cir>-
cumstances it was that the heart of conscience-stricken
power cowered. To avoid the humiliation of disgraceful
defeat, and the embarrassments arising from a decision of

 IV —
a judicial tribunal of the highest character, that these ar
rests were made at the peril of life and property of those
who ventured on them, the talons of Mr. Stanton were
loosed from the body of Mr. Cook. The last attend
ance before the court was, in order, as Mr. Cook's counsel
supposed, to the argument of the merits of the case. The
learned Judge had at one of our former attendances sug
gested three points for consideration :
" First — Whether a person who is not in the military service of
" the government, and is not in a place where hostilities are actually
" pending or threatened, and is not a place in military occupation, is
" liable to military arrest in a district in which the Courts of ordinary
" civil and criminal jurisdietioii are open for the regular administraition
"of justice.
" Second — Whether the third section of the act of the Rth of Au-
" gust, 1861, legalizing and making valid all the acts, proclamationg
"and orders of the President after the 4th of March, 1861, applies
" to his acts, proclamations and orders of a similar character made after
"the enactment of that law; and if not, whether any other act of
'' Congress has expressly or impliedly authorized the proclamation in
*' question. "Thied — Whether the President has the authority without or inde
pendent of any statutary authorization."
The arrest was to be justified, either under the Presi
dent's proclamation, of the 24tli September, 1862, or under
a somewhat similar paper issued from the War Department
the 8th of August previous.
The order of Mr. Secretary Stanton ran thus:
"Ordered — First — That all United States Marshals, and superin-
" tendents and chiefs of pi lic3 of any town, city or district, fee, and
"they are hereby authorized and directed to arrest and imprison
" any person or persons who may be engaged, by any act of speech or
" writing, in discouraging volunteer enlistments, or in any way giving
" aid and comfort to the enemy, or any other disloyal practice against
" the United States.
" Second — That immediate report be made to Major L. C. Twiner,
" .Judge Advocate, in order that such persons may be tried before a
" Military Commission.
" Third — That the expenses of such arrest and imprisonment will
"bs certified to the Chief Clerk of the War Department for settlement
"and payment. EDWIN M. STANTON,
Secretary of War."

 V —
The proclamation of the President was in these worde :
By the Presidtnt of the United States of A-merica.
A PROCLAMATION.
Whereas, It has hecome necessary to call into service not only vol-
nnteers but also portions of the militia of the States by draft, in order
to suppress the insurrection existing in the United States, and disloyal
parties are not adequately restrained by the ordinary processes of law
from hindering ihis measure, and from giving aid and comfort in vari
ous ways to the insurrection.
Now therefore be it ordered. First — That during the existing insur
rection, and as a necessary measure for suppressing the same, all rebels
and insurgents, their aiders and abettors within the United States, and all
persons discouraging volunteer enlistments, resisting the militia drafts,
©r guilty of disloyal practices, aifording aid and comfort to the rebel
lion against the authority of the United States, shall be subject to
martial law and liable to trial and punishment bj courts martial or
military commission.
Second. — That the writ of haheas corpus is suspended in re
spect to all persons arrestpd or who are now or may hereafter, during
the rebelli<n, be imprisoned in any fort, camp, arsenal, military pris
on or other place of confinement by any military authority, or by the
sentenee of any court martial or military commission.
In witness whereof I have hereunto set my hand, and caused th'e
seal of the United States to be affixed.
[L. s.] ABRAHAM LINCOLN.
Done at the city of Washington, this the twenty-fourth day cf Sep
tember, in the year of our Lord one thousand eight hundred and
sixty-two, and of the iodependenoe of the United States the eighty-
seventh. Wm. H. Seward,
By the President. Secretary of State.
For the discussion of the points suggested fr.om the
bench and of the .questions generally arising under the
President's proclamation, the order of the Secretary of
War, and the course of recent Executive action, prepara
tion had been made, as well as the briefness of the period
from the employment of counsel to the time fixed for the
hearing permitted.
The paper now printed began as nothing but a few loose
memoranda penned in examining books which were thought
to bear upon the case. They are given to the public in their

-VI-

present very enlarged form (and with a political cast which,
before a court of justice, would, of course, have been inad
missible), because the interest in the subject, one which
has strongly agitated the public mind, has been revived
by recent proceedings in Congress, and the approaching
session of the legislature of Pennsylvania ; and moreover
because it is believed that the most insignificant contribu
tion towards dissipating the abominable heresies of the
administration, first given to the country in the opinion of
their Attorney General, will be received with a degree of
favor by every American who values his freedom and is ca
pable of abhorring schemes laid for its destruction. Things
have changed since the 23d September. The day is come
when men lifb their heads again, when the country wonders
to see what they have submitted to, when, whilst they visit
¦with their contempt the more than one judicial character,
who untrue to his station and himself basely abandoned his
function in the hour of its trial, hearts swell with gratitude
as they turn to those judges who stood firm and did their
duty — who did not fly to shelter their own heads from the
storm and leave the Constitution in a ditch.
The people of the United States, now fairly awake, per
ceive, and they are about to act upon it, what the question is,
which is before them. Centralized power is the insolent
demand of the abolition party, liberty and the rights of the
States is the cry of the people ; and we shall see which is
to prevail.
Charles Ikgeksoll,
Philadelphia, Decemher, 1862.

SPEECH, &C.

I proceed, sir, to the discussion of the grave and momen
tous question now in full view under the points to which
the attention of counsel has been directed from the bench.
But let me be pardoned if I say that my colleagues and my
self, are, as counsel in a court of justice, in a new and
strange position in examining them ; for neither our client
nor ourselves have seen the warrant under which the relator
was taken, noi* have we the slightest knowledge of the con
tents of the afiS.da'vits which are understood to have been
made against him. He is a teller in one of the banks, and
was called aside from his desk and arrested in the midst of
the morning's business by two persons who informed him
they acted by orders from Washington, and there his infor
matiori and our ow^n ends. Dark and summary justice this !
It is due to Mr. Cookthat his counsel should assure the Court,
thus -without papers and proofs on either side, that on
looking carefully back upon his conduct and language, at
their request, and for their information, in order to his de
fence, he is utterly unable to furnish them with any assign
able motive for this violence. He has done nothing, said
nothing, and attributes his arrest to private malice. But
whatever the mystery that attends the question of the cause
of offence which Mr. Cook has given, there is none as to
the fact, which is the subject to which our notice has been
directed by the Court, — that it is under Executive authority

he was taken, and is now held. He is in custody by warrant
of no committing magistrate. He is deprived of his liberty
by order of the Executive, and is about to be carried out
of your jurisdiction, sir, and beyond the reach of any civil
tribunal, unless your writ shall prevail for his relief. Fif
teen months ago when this tremendous pressure was first
applied, there was no proclamation of it — its exercise was
unannounced — the arrests were silently made through
heads of departments — tbe man or woman was seized and
imprisoned, and it was supposed, (but that was conjec
ture, unsupported by authority,) that the same power that
seized the citizen and took away his liberty, professed to
have suspended the habeas corpus. Be that as it may, persons
disappeared from time to time, from their homes, and were
first heard of in distant prisons, where they still remain.
But itwas not then pretended to push Executive power to the
point of trying and punishing the prisoner. He only re
mained in confinement without bail or trial, which is the un
derstood badge of the suspension of the habeas corpus act.
But more came with the Sth of August, 1862. On that day
appeared an oflicial paper from the Secretary of War, by
which was gazetted the suspension of the habeas corpus,
which delegated to officials, almost without number, the
power of arrest ; which created the new offence of " disloyal
practices," and suspended the courts of justice ofthe country,
handing over prisoners to be tried by Military Commission.
By this order it is directed that these seizures be effected
by any of the Marshals of the United States, of whom, of
course, there are one or more in each State, and by any
" Superintendents and Chiefs of Police of any town, city or
district," of whom there must be tens of thousands — for
any act or " speech or writing," which these individuals
might look upon as " discouraging volunteer enlistments,
"or, in any way, giving aid or comfort to the enemy;" or
" for any other disloyal practice against the United States;"
that the writ of habeas corpus is " suspended in respect to

— 8 —
"all persons arrested and detained and in respect toall
" persons arrested for disloyal practices ;" that report of
arrests be forwarded to Washington, " in order that such
" persons may be tried before a ' Military Commission ;' "
and finally, " that the expense of the arrest and imprison-
" ment should be certified to the chief clerk of the War
" Department, for settlement and payment." Thus the
habeas corpus is formally suspended ; its suspension war
rants the arrest of the citizon, not merely by great ministers
of State, but at the discretion of the police, including vil
lage constables, in all parts of the country, who are en
couraged to spy into the affairs of their neighbors, and
should they deem their "speech," "act," or "writing"
" disloyal," to arrest and carry them to Washington for
trial by Military Commission.
From the Sth of August to the 24th of September the
country remained under the order of the W'ar Department
of the first of those dates, but on the 24th September the
wheel of power makes a turn more, the President himself
appears in a proclamation, by which "ordinary processes of
law" are declared to be insufficient to the present exigencies
of Executive authority, and he orders a suspension of the
habeas corpu,s, and declares martial law. When the Secre-
t'ary of War, saying he suspended, or somebody for him had
suspended, the habeas corpus, arrests a citizen and hands
him over to be tried by a military commission, that is
martial law; but he did not call it so. The President gives
things their names. He resolves all doubt, and proclaims the
habeas corpus act suspended. He does not say that those
"guilty of disloyal practices" shall be arrested and tried
before a military commission and leave the rest to implica
tion. He says they " shall be subject to martial law," and
closes the chapter.
Sir, in a Court of Justice, denunciation, which is cheap
anywhere, is altogether valueless. It would be vain, here,

to inveigh against this Proclamation. What is to be done
is to show, not that . it is atrocious, but that it is un
authorized. A respectable people once cancelled, volun
tarily, their somewhat free institutions, and established a
despotism, placing themselves in the uncontrolled keep
ing of the Sovereign. Have we done so ? Can the
President suspend the habeas corpus act? Can he declare
martial law ? Can those measurea be insisted on ? Can
the judiciary be required, to lend their aid to them ? That
is the question on which the discharge of Mr. Cook de
pends, and I proceed to its examination.
The Constitution of the United States has been generally
thought to be levelled to the intelligence of any educated
mind. Every pains was taken to make it so. It is as per
spicuous as consists -with brevity, its language is popular,
its arrangement and order seem perfect. It was written to
be understood by e-^^erybody ; to be laid before the whole
population of the country for their approval and ratifica
tion. To leave the States to doubt and pause on its mean
ing was to hand it over to swift condemnation. If, to the
jealousy which everywhere abounded of any central power
at all, which diminished their sovereignty, was added the
hesitation, which must attend the adoption of a charter,
the meaning of which was not clear, the way was barred
and bolted against all chance of obtaining the votes of the
nine States required to organize a government under it.
As all may see, in the debates of the State Conventions,
it was upon the attempt to force doubt ou clauses, where
there was not room for it, more than upon objections to
those the meaning of which was past cavil, that the oppo
sition to the Constitution turned. K its provisions were
obscure, the paper had no more chance than if they were
wrong. Doubts were traitors at that day, and the framera
of the Constitution exhausted their ingenuity so to convey
their work to the people that it should be intelligible ; that
its meaning should not be the subject of speculation ; and

— 5 —
in the habeas corpus clause, at least, they succeeded so
well that, of the millions and millions of readers, students,
and expounders of it, from the era of the Constitution,
1787, to that of Mr. Lincoln, 1861, not a doubt arose, no
eye ever saw in the clause material for one.
I take up first the habeas corpus question, and I will
endeavor to show by the order of subjects, which is itself a
law, that to doubt, it is by Congress and not the Executive,
that the habeas corpus is to be suspended, " when in case
of rebellion or invasion the public safety may require it,"
only because after the word " suspended" are not written
the words by the Congress, is to deny to the Constitution the
element of order, and throw the whole paper into confusion.
If order is to go for nothing, and the fact that the suspending
clause is found under the legislative head, among legislative
powers and restrictions, be of.no avail, then the Constitu
tion ought to be recast from beginning to end. If a law
may be suspended — and to suspend a law is to legislate —
by one branch of the government, as well as by another,
unless the power over that law be in so many words given
to one, and in so many words denied to the others — if such
be our Constitution — then it may be safely said that it is a
very confused production.
Now, if ORDER be the first law, let us see what part it
plays in the Constitution of the United States.
The members of Ihe Convention of 1787 laid their work
before the people, divided into seven distinct and .=ieparate
articles, subdivided into sections. To the first article be
longs the subject of the legislature, to the second the
executive, to the third the judiciary, to the fifth the subject
of amendments of the Constitution, to the seventh that of
the ratification of it by the States. The fourth and sixth
articles, which are sometimes in the books entitled miscel
laneous, comprise matter not capable of being articled under
the heads of legislative, executive, judiciary, amendments
and ratification, such aa that which declares that "full

— 6—
"faith and credit shall be given in each State to the acts,
"records and judicial proceedings of every other State ;"
that " all debts, contracts and engagements entered into
" before the adoption of the constitution shall be as valid
" against the United States under the Constitution, as under
" the Confederation," and other miscellaneous provisions,
in all seven in number. The separation of subjects is
thorough. The three great departments of government are
confined to their several articltes, 1st, 2d, 3d, and kept as
distinct, one from the other, as language and ideas will
admit; so are the subjects of articles 5th and 7th, that of
amendments to the Constitution, and that ofthe ratification
of it. Of the miscellaneous matter comprised in articles
4th and 6th, it may properly be said that which is contain
ed in article 4th refers itself rather to the States than the
Union, and that of article 6th rather to the Union than the
States. The force of classification could go no further. In be
stowing and defining the functions of a government cora
posed of three departments, one of which is to make the
laws, another to execute, them, and the third to administer
justice, it is of course not possible in describing one to omit
all mention of the other two, which are to unite in action
with.it. Therefore under the legislative article the Executive
aud Judiciary are not unmentio'ned, and in those of the
Executive and Judiciary the other branches are heard of;
but incidentally only, and incidentally to the description of
the functions of that department to which the article is de
voted. Disorder never creeps in. For example, to an act
of the Legislature the Executive puts his name. Inci
dentally therefore tO the organization and establishment
of the Legislature by article 1st the President appears.
Again, to make a President and Vice President of the
United States, in the event of the electors not casting a
m-ajority of vOtes in favor of any one eandidate, the two
houses of the Legislature come in, and elect them. Inci-

dentally therefore to the organization and eatablishment of
the Executive by article 2d, the Legislature appeara. But
80 absolute is the separation of subjects, and so rigorously
is pursued the rule of bestowing all powers, fixing all
limits, assigning all duties to each department under its
cwn proper head, before proceeding to the uext, that in the
legislative article to which are given half of all the sentences
ill which the Constitution is written, the Executive office is
alluded to three times only. It appears when provision
is made for the choice of the presiding officer of the Senate,
in the event of the Vice President being called to exercise
the office of President : it appears again in the provision
that the Chief Justice, and not the Vice President, shall
preside in the Senate in the event of the impeachment and
trial of the President; and also in the provision that bills
passed by Congress are to be presented to the President for
his approval or disapproval. In those three cases is the
President heard of iu the legislative article ; and unless it
be true that the habeas corpus clause gives to him and not
Congress, the suspending power, he is not elsewhere known
in the article. There is the same degree of exclusive devo
tion to its proper subject, with the same sort of incidental,
but incidental only, introduction of other subjects, in the
other two articles. If the Legislative appear in the Execu
tive article, it is incidental, as, where in article 2d, it is
ordered that the electors of the President and Vice Presi
dent transmit their votes to the seat of government,
to be opened by the President of the Senate in the pres
ence of Congress, who, should the electors fail lo make
a choice, choose a President and Vice President, the House
choosing the President, and the Senate the Vice President.
If the Judiciary appear in the Executive article, it is inci
dental, as, where in article 2d it is ordered thatthe judges be
nominated by the President.
I invite counsel to show the Court a single case where in
the Legislative article an Executive function, attribute or

— 8 —
power, or any thing pertaining either to the Executive or Ju
diciary is to be found, excepting only in the manner I have
stated. Certainly if the Executive be a President and Vice
President, and the Legislature a Congress, and in a given
event Congress are to choose a President and Vice President,
the Executive aud Legislative must e'en go, for the occasion,
into the same article. It might be the Legislative article or
the Executive article, but it must be one of them. But let
counsel show where the framers of the Constitution have
taken purely Executive matter and thrown it into article 1st,
or matterpurely Legislative and put itintoarticle 2d; lethim
show where they have been arbitrary, careless or indiffer
ent. If in article 1st, araong the powers of Congress or the
restrictions of them, we have in the habeas corpus clause,
a function, not of Congress but the President, itis the only
matter out of place in the whole instrument. It is the only
function not carefully assigned to its proper article and sec-.
tion. Moreover, it is a faculty only less important than
thatof declaring war or raising money, left to be attributed
to the Executive, Legislatire or Judiciary, as circumstances
might direct.
I come, now, to consider in detail article 1st, that which
contains (he habeas corpus clause. I propose taking up the
contents of this article, section by section, to show, by an ex
amination of thera, that the article is a purely legislative arti
cle, and contains nothing but wh'at goes to the organization
of that department; and, above all, that no power is any
where conferred on the President, except that which I have
mentioned of signing or refusing his signature to bills.
The article coraprises ten sections.
The 1st declares that the legislative power shall be vested
in a Senate, and House of Representatives.
The 2nd concerns the House and, clause by clause, pro
vides for ita composition, the term of service, age and
qualifications of members, the qualification of electors^the ap
portionment and basis of representation, the filling of va-

— 9 —
cancies, the power to choose officera, and the impeaching
power. The 3d concerns the Senate, and, clause by clause, pro
vides for its composition, the term of service of membera,
their election, their classification in order to a third of
them going out every second year, for the filling of vacancies,
the age and qualification of senators, for the Vice-Presi
dent's presiding with no vote but the casting vote, for the
power to choose officers, the po^wer to try impeachments,
and their organization and sentence in impeachment cases.
The 4th concerns both Senate and House, in two clauses
makes certain provisions for the time of the meeting of
Congress, and the rights of the States^ as regards the elec
tion of members.
The 5th concerns both Senate and House, and in four clauses
provides for their being judges of the elections, returns
and qualifications of their own members, for the quorum,
the attendance of members, and their conduct, for the jour
nals, and the yeas and nays, and touching the right of
either House to adjourn without consent of the other.
The 6th concerns both Senate and House, and, in two
clauses, provides for the compensation and immunities of
members, and against their appointment to or holding
place under the United States.
The 7th concerns both Senate and House, and, in three
clauses, provides specially for the case of revenue bills, and,
in^^the case of all bills, orders, resolutions or votes requiring
the concurrence of the two Houses, gives the President his
qualified veto.
Thus we have what may be called the composition, orga
nization and mode of action ofthe two Houses ofthe legis
lature preaented in these seven sections of the first article.
So far it is plain there is- no matter in the legislative arti
cle that is not legislative; nothing preparatory, or intro
ductory to this stupendoua claim of the President in the

— 10 —
remotest degree, nothing which lays the ground for it.
How is it with the rest of the article ?
The remaining three sections are devoted, the 1st to con
ferring on the legislative body thus established its various
powers, the 2nd to imposing on the legislative body certain
restrictions, and the 8d to tying the hands of the States by
restricting them frora action which would embarrass that
of the legislative body. The first of these three last sec
tions is the eighth. Having premised, " The Congress shall
have power" it proceeds in eighteen clauses, to enumerate
the powers of that body, seventeen of which are specific, and
the eighteenth more general, being " To make all laws
" which shall be necessary and proper for carrying into exe-
" cution the foregoing powers and all other powers vested
" by this constitution in the Government of the United
" States or any department or office thereof" Each of
these powers is a power of Congress, certainly not of the
President. The next two sections of the first article, sec
tions nine and ten, I have said are both restrictive,
section nine on Congress, section ten on the States.
They are restrictive in letter as well as spirit. Of the
seven clauses of section nine, five begin with " No." JSo
bill of attainder shall be passed. No title of nobility shall
be granted, and so with the others. The remaining two
clauses, which do not begin with the simplest word of ne
gation in the language, are however equally restrictive with
those which do. The migration or importation of certain
persons shall not be prohibited. The privilege of the writ
shall not be suspended.
Of the two clauses of the next section, section ten, both
begin with "No." No state shall enter into a treaty.
No state shall lay imposts or duties on tonnage without
consent of Congress.
I have said that section ten, which I take up before sec
tion nine, consists of certain restrictions on the States in

ti

—11—
tended to prevent their embarrassing the action of Congreaa.
I read section 10th :
"1. No State shall enter into any treaty, alliance, or confederation ;
" grant letters of marque and reprisal ; coin money ; emit bills of credit ;
" make anything but gold and silver coin a tender in payment of
" debts ; pass any bill of attainder, ex post facto law, or law impairing
" the obligation of contracts ; or grant any title of nobility.
" 2. No State shall, without the consent of Congress, lay any im-
" posts or duties on imports or exports, except what may be absolutely
" necessary for executing its inspection laws ; and the net produce of
" all dutiea and imposts laid by any State on imports or exports shall
" be for the use of the treasury of the United States, and all such laws
' " shall be subject to the revision and control of Congress. No State
" shall without the consent of Congress, lay any duty on tonnage,
" keep troops or ships of war in time of peace, ent^r into any agree-
" ment or compact with another State, or with a foreign power, or
" engage in war unless actually invaded, or in such imminent danger
" as will not admit of delay.''
Having thus given its language verbatim, it is perceived
that, of these restrictions on State power, six touch specifi
cally named powers of Congress. They are the powers : —
1. To grant letters of marque and reprisal ; 2, To coin mon
ey ; 3. To lay imposts and duties on imports and exports ;
4. To lay duties on tonnage ; 5. To keep troops or ships of
war in time of peace ; 6. To engage in war. Each of these
six functions being conferred on Congress, the restriction
on the States makes it either exclusively a power of the
Federal Legislature, or a power to be exercised by a
State only with the consent of Congress, and subject
to their revision and control.
It is obvious that these six powers must needs hfe subject
to their control, or exclusive, to be powers at all. Congress
would in effect, notpossess the power of war and peace, ifa
State, at its pleasure, could arm, or grant letters of marque
when peace waa the Federal policy, or could make peace
when Congress declared war; nor of coining money, if it were
in the power ofa State to establish a standard of value of its
own; nor to regulate commerce and impose duties, if at the
porta of every Sta,te there were a different tariff". These are re-
2

—12—
strictions on the Statea in order to Federal legislation.
Certain powera being conferred on Congress, corresponding
State restrictions prevent their being interfered with.
There are next in the 10th section, three restraints which
are laid on Congress and the States alike, forbidding attain
ders, ez post facto laws and titles of nobility. There would be
little use of preventing the Federal government violating
these .rules of justice or policy if the States could do it.
To give effect to these three restrictions, to make the
law of Congress what such restraints intend it should be,
they are laid also on the States.
I now come to the other State restrictions. They are five
in number, and contained, I have already said, in the 10th
section. They do not, like the other six, cover powers of
Congress, which can be said to be specifically named or re
ferred to, but they are restrictions on State power which
are necessary to Federal legislation. Nor are they like the
other three, inhibitions alike on Congress and the States.
These five forbid a State — To enter into any treaty, aUiance
or confederation ; to emit bills of credit ; to make anything
but gold and silver coin a legal tender in payment of debts ;
to pass any law impairing the obligation of contracts ; to
enter without the consent of Congress into any agreement
or compact -with another State or with a foreign power.
Ifa State could enter into treaty, alliance or confederation,
or enter into any agreement or compact with a foreign
power, without the consent of Congress, the eleventh of the
eighteen powers conferred on them, that of war and peace,
would be taken up bythe roots, and not one ofthe remain
ing seventeen but would be impaired. The denial to States
of authority to emit bills of credit or make a legal tender
of any commodity but gold and silver, or to violate con
tracts, is indispensable to the exercise by Congress of the
third power, that of regulating commerce with foreign na
tions and among the several States, and of the fifth, that
of coining money and regulating the valjie thereof, to say

—13—
nothing of others. Finally the denial to States of authori
ty without the consent of Congress to enter into agreements
or compacts with one another may be said to be indispen
sable to the exercise of any and every one of the powers of
Congress. The compact to-day existing among the seced
ed States seems to be proof enough of that.
I submit, therefore, that of the sixteen prohibitions
under which the States are laid in the tenth section, the
purpose of all is to disembarrass Congress df State action
to the contrary of the exercise of the eighteen powers con
ferred on the Federal Legislature, in the same article.
The word "treaty," in the first clause of the tenth
section, forbidding States to enter into treaties, especially
if taken without the words immediately following, " al
liance or confederation," may be thought a restriction
in favor of the power of the President and Senate to make
treaties, rather than of any power of both branches of
Congress, if we assume that Congress is bound, when
the treaty has been confirmed, to make laws to carry it out.
But, not to enter upon such disputed ground, it is prac
tically true that in no free country can the Executive,
without the approbation of the representatives of the
people, carry out a treaty, still less one which could be
properly denominated an " alliance or confederation." In
England a treaty could not be made if the minister were
not able to bring a parliamentary majority to approve it. In
France Mr. Rives' treaty of the4th of July, 1831, was subject
to the vote of the chambers on the approprial;ion required
to meet ita provisions. No treaty could be devised that
might not require legislation for its support.
If the President and Senate made treaties independently of
the House of Representatives, what would become of the
power of Congress to lay imposts, to regulate commerce, to
make war and peace, to establish rules of naturalization, to
regulate the value of foreign coin, to define and punish
piracies and oflfences committed on the high aeaa and

— 14 —
against the laws of nationa, to aupport armiea and navies,
in fact every power of the eighteen ? They are all capable
of modification or abrogation by treaty with foreign nationa.
It is not, therefore, because the President and Senate make
treaties that it can be said to be less than true that of the
sixteen restrictions every one is a restriction on the power
of the States, in order to the exercise of the powers of Con
gress. If the States could make treaties, alliances and con
federations, the powers of Congress would be paralyzed;
and this prohibition on the States follows in the same
article the powers conferred on Congress. It is like placing
the Executive power to veto bills, in the legislative article.
It was equally appropriate to define and describe that power
uuder the legislative or executive head, for it belongs to
both. The restriction on States to make treaties, alliances,
and confederations is appropriate to either article. It
must be written down under one of them, is equally well
in either aud could not properly be placed in both.
I pass from the 10th to the 9th Section, — from the re
strictions on the States to the restrictions on Congress.
The 9th section contains seven restrictive clauses, and
eleven restrictions, there being more than one to a clause,
in some instances. Every clause is restrictive, and restrict
ive only. I do not say there may not be a grant of power
in the, dress of a restriction, though far from admitting it.
Whether a restriction can be a grant I do not stop at this
moment to enquire ; but they are all in language restric
tions, and not grants. I take them one by one :
" The migration or importation of such persons as any of the States
" now existing shall think proper to admit, shall not be prohibited by
" the Congress prior to the year one thousand eight hundred and eight,
"but a tax or duty may be imposed on such importation, not exceed-
" ing ten dollars for each person,"
Here is a restriction on the 1st and 3d of the powers of
Congress, by which having power to lay duties and regulate
commerce, they might have forthwith imposed a prohibition
on the importation of slaves, had they not been, by this re-

—15—
striction, restrained from total prohibition until the first of
January, 1810, and in the meanwhile limited to a duty of
not more than $1 0 a head. This then is a restriction on a
power of Congress.
I pass the 2d, which is the habeas corpus clause, and
come to the 3d.
" No bill of attainder, or ex post facto law, shall be passed "
Congress having power to punish crimes might have
punished by attainder or ex post facto law, but here is a re
striction. The 4th Clause—
" No capitation or other direct tax shall be laid, unless in propor-
" tion to the census or enumeration hereinbefore directed to be taken."
is a restriction ot the first and third of the powers of Con
gress, to lay and collect taxes, duties and excises and to re
gulate commerce. But for it, and the third clause of the
second section, Congress might in imposing direct taxes,
favor one State at the expense of others, or reckon slaves
not by the three-fifths rule.
The 5th Clause declares that —
" No tax or duty shall be laid on articles exported from any State.
" No preference shall be given by auy regulation of commerce or re-
" venue to the ports of one State over those of another ; nor shall ves-
" sels bound to or from one State be obliged, to enter, clear, or pay
" duties in another.
It is plain that the three prohibitions here comprised ap
ply to the first and third powers of Congress, which are
broad enough, if not thus restricted, to enable Congress to
legislate in any one or all of the the three prohibited ways.
The 6th Clause-
" No money shall be drawn from the treasury but in consequence of
" appropriations made by law ; and a regular statement and account
"of the receipts and expenditures of all public money shall be pub-
" lished from time to time."
By the first of the powers of Congress they are author
ized to raise money by taxes, by the second to borrow it,
by the third to coin it. Under these and other powers the
Treasury is filled. By the eleventh, twelfth and thirteenth,

— 16 —
they are empowered to declare war and support navies.
By these and other powers the Treasury is emptied. Con
gress fills and empties it by virtue of the powers conferred ;
but by this restriction they are limited, in parting with their
means to appropriations made by law ; and of both receipts
and expenditures accounts are to be, from time to time,
published for the information of their constituents.
The obedience to this restricting clause which, to draw
money from the Treasury, requires a law appropriating it,
will be found in the annual appropriation bill of every ses
sion. The command enjoining the publication from time to
time of a regular statement and account of the receipts and
expenditures of all public money was fulfilled at the first
session of Congress under the Constitution, by the 4th
section of the act of the 2d September, 1789.
Thus Congress are prohibited to permit the Executive,
the Judiciary, the army, the navy, to expend the public
treasure in any other manner than under appropriations
made for their proper objects, and made public. The Leg
islature is responsible for the public expenditure and can
not throw it off on the functionaries who make the outlay.
In most other governments the money which is gathered
from the people is appropriated by Executive power.
In the United States, Congress which has the power to raise,
but not to spend it, is especially prohibited to allow it to
be expended by the Executive or any other department, in
any other manner than in consequence of appropriation
made by law, and of both its receipts and expenditure, they
must see that the accounts are published.
The 7th Clause is —
" No title of nobility shall be ffranted by the United States, and no
" person holding any office of profit or trust under them shall, without
" the consent of Congress, accept of any present, emolument, office,
"or title of any kind whatever, from any king, prince, or foreign
« state." Here are two distinct parts to the clause. The first for
bids titles of nobility, whicii Congress but for the restric-

— 17 —
tion, might essay to confer as they do military and naval
titles. The second prohibits Federal functionaries, legisla
tive, executive and judicial, to accept office, title, preaent
or emolument frora foreign States. But for it there would
be nothing unconstitutional in a member of Congress
choosing to receive a pension from abroad, or a minister to
a foreign court a token of politeness or regard from the
prince to whom he was accredited. Under the restriction
of leave first had from Congress, either present, emolument)
office or title may be accepted. This could scarcely be
classed among the powers of Congress, and has been put at
the foot of the restrictions. It is a restriction against their
permitting the silent influence of foreign gold or favor upon
the Federal Government. Should we think proper to allow'
merit to be rewarded from abroad, it must be openly done
in pursuance of act or resolution of Congress.
This brings us to the habeas corpus clause, the second of
the 9th section, and I think I may say that the analysis of
the contents of the first article* warrants the conclusion
that if the exception be not to be found in the habeas cor
pus clause it is not anywhere in the article, and that there
is no exception in any part of it to the rule that it is an ar
ticle legislative merely.
I read the habeas corpus clause :
" The privilege of the writ of habeas corpus shall not be suspend-
" ed unless when, in case of rebellion or invasion, the public safety
" may require it."
Now, what is there to make this clause an exception to
to the rule — a rule otherwise universal ? Here is a prodig
ious power, that of the President to suspend the Constitu
tion, we are told, and that we are to look for it, not among
the Executive attributes in the 2d article, but hidden and
stowed away among the restrictions upon legislative power
in the legislative article. The article I have examined con
sists of ten sectiona given to the organization, the powers '
and the restrictions of the powers of Congress. It begins with
declaring that the legislative powers granted by the Consti-

— 18 —
tution shall be vested in the two houses, — proceeds to dtfine
the organization of each separately, — then assigns the pro
perties, rulea and privileges common to both, with no
mention of the other two branches of government, un
less incidentally to the description of the Federal Legisla
ture. Then follow the powers with which Congress is
endowed to carry out the objects for which it was con
stituted ; then the restrictions of those powers intended
for protecting against Federal oppression the States and
citizens of States coming into the Union ;. an d last the re
strictions on State power intended for protecting Federal
rights and Federal authority against State jealousies.
After the Legislature has been thus instituted, in the
most clear, orderly and systematic manner the Executive
institutions come, immediately following, in an article be
ginning :
" The Executive power shall be vested in a President of
" the United States of Araerica ;" and with the same clear
ness of method, unmixed with other matter is defined and
organized the Executive department.
And now the question is whether it is to be assumed — I
say assumed — that the habeas corpus clause, standing among
the clauses of the section of limitation of the Congressional
powers, is a limitation, not of Congress, but the President ;
that when the President has been scarce named, and not at
all except incidentally, nor his office described, there should
be dropped on him, from what is pretended to be a stray
clause of the legislative article, this tremendous and en-
gulphing authority.
If such a misleading collocation of sentences figured in
any mere literary work, it would bejustly the subject of con
temptuous criticism, but in the case of a national charter of
organic law such want of precision is unaccountable and
incredible. It is a fault extraordinary indeed in a produc
tion of such order and accuracy in the preparation of
which we know that men of high ability, with the habit of

—19—
literary labor, took every precaution against confusion or
inelegance, and in which not another such offence can be
discovered,. Nor should it be forgotten that before this
paper in which the greatest if not the most comprehensive
of the Executive powers is in danger of being lost in the
legislative article, was laid before the public, it was handed
over to a committee raised for the express purpose of giving
the last finish to that very "arrangement" which tbey are
now supposed to have left in this important particular so
wretchedly imperfect. When we add to this that the Exe
cutive power, thus supposed to be found just where it ought
not to be — is not said to be Executive — is not called so — ^but
that, to make it a power of the President we have to supply
the words by the President, the difficulty of believing on the
face of the writing that a blunder so gross has been fallen
into becomes very great. If the power was meant for the
President what chance of being so understood when placed
in the legislative article, without the words by thg President,
added ? Found in the legislative article where the concerns
of the Federal Legislature alone are in question, what so
natural as that the suspending power should be attributed to
Congress, though the words by the Congress were not used ?
It was unnecessary to repeat them at each clause. In the
preceding section, conferring the powers of Congress in
eighteen distinct clauses, each conferring a distinct power,
the word " Congress" is written but once. "The Congress
shall have power," and then follow in succession eighteen
sentences, all governed by those words. The case is not
exactly that of the restricting section, which contains
the habeas corpus clause, for there the clauses or sentences
are not governed by the noun Congress ; but they have
it, for their objective case, and that is the difference be
tween them. They resemble each other in this, that the
repetition of the words by the Congress in the one and
of the Congress shall have power in the other is avoided
in both. 'Ll the enumeration of powers it was not neces-

— 20 —
sary to say Congress shall havepower at each successive clause.
In the enumeration of restrictions it was not necessary to
say by the Congress, at each successive restriction.
The 8th section saying "The Congress shall have power"
1st to lay and collect taxes, 2d to borrow money, 3d to regulate
commerce 'and so to the end, is clear, without repeating, at
each newly named power, the words ihe Congress shall have
power — the Congress shall have power 1st to lay and collect
taxes, the Congress shall have power 2d to borrow money
and so forth. So the 9th section is clear ; it begins lat
"The migration or imporl ation of such persons as any
" of the states now existing shall think, proper to adrait
"shall not be prohibited • by Congress" and the words
by the Congress are not repeated in any of the five suc
ceeding clauses, but they are aa clearly to be under-
atood as part of each, as the worda the Congress shall
have the power are in the preceding section. 1st. The
migration shall not be prohibited by ihe Congress. 2d.
The privilege of the writ of habeas corpus' shall not be
suspended bythe Congress. 3d. No bill of attainder shall be
passed by the Congress. 4th. No capitation tax shall be laid by
the Congress. 5th. No tax or duty shall be laid by the Congress
on articles exported from any State. No preference shall
be given by ihe Congress to the ports of one State over those
of another. Nor shall vessels bound for one State be
obliged by the Congress to enter, clear or pay duties in ano
ther. 6th. No money shall be drawn from the Treasury but
in consequence of appropriation made by law by the Congress.
But as it was first a miserable blunder to let a distinct
Executive power get into the Legislative article, and not
less miserable, when it did get there, to omit to say in plain
words that the power was a power for the President, when,
otherwise, every man must suppose it was a power for Con
gress ; so to leave, if that was intended, the exercise of this
authority to be carried here or there by the currents of
party, is the worst of all. What ! An open question whether

— 21 —
the Constitution, if to be suspended, is to be suspended by
the representatives of the people or by the President !
Why not have left it an open question how long the
President waa to serve, whether for life or years, whether
we were to have a single or double Executive, or any other
point not more momentous than this which was turned over
to be settled as it might be ?
What is a Constitution for, if it is not to save us from sueh
perils, to fix in advance the organic law, to bestow the higher
and greater functions of authority in the quarters where it is
deemed they most safely can be lodged, to anticipate and fore
stal faction, and the "priesthood of expediency," bythe de
liberate counsels of prudence and wisdom? It is not to be
believed that the framers of the Constitution thought that
to leave this question open was right. It is nbt to be be
lieved that knowing it was wrong, they left it open by sheer
negligence. Yet this is the alternativfe, if counsel mean
to say that in the absence of the words by the Congress, in
the habeas corpus clause ofthe Legislative article, the power
to suspend the privilege of the writ can fairly be attributed
to the Executive.
The omission was intentional or unintentional. If
intentional, it was incredibly unstatesmanlike, if unin
tentional, it was incredibly careless. This I say is the
alternative, unless he means to tell us that a paper signed
George Washington, to say nothing of the other illustrious
names to it, is in a material part of the terms in which it is
conveyed, uncandid, insincere and deceiving, that the Con
vention or some of them, who were in favor of a stronger
government than the States would for a moment have look
ed at, meant to thrust upon the people at some juncture
like the present, that which never would have been con
sented to when they were laying, while wisdom' ruled'the
hour, the foundations of their institutions.
But, I proceed, as if we had before us the construction,
not of a constitution, but a statute, in which there is de-

—22—
tected a casus omissus. Let us believe that here is a casus
omissus in the Constitution of the United Statea, or that for
some reason, no matter what, it makes no provision which
branch of the governraent shall suspend, what it is settled
may be suspended, the privilege of the writ of habeas corpus.
What power can auapend the law but that which made it,
the Constitution being silent and the student or the politi.
cian left to attribute a Legislative power to the proper
branch of the government? Where should Legislative
authority adhere, if not to the Legislature ? What is the
suspension of a law but the making of a law ? It is but
modifying, changing, altering and amending it, aud who
but the Legislature can do that? Here is a restriction
on thia law-suspending right, but the paper, they say, fails
to inform us on whom the restriction is laid, and we know
no more than this, that the restriction is imposed on what
ever power it is which can suspend. Why place the re
striction on the President ? What power had he to be re
stricted ? The habeas corpus if it had not been enacted by
Congress in the statute of 1789 would have no vitality for
the President to suspend. No such writ could be sued out
of a Federal Court but for the act of Congress.
What sort of government did they give ua, if thoae, whose
duty it was, to enact this writ, and whose duty it might be to
suspend it, could enact but could not suspend it ? The argu
ment must be a strange one which sets oft" with agreeing to
the power of Congress to enact the writ, and while insist
ing it must be sometimes suspended, yet denies to Congress
the power to enact a suspension. If suspending the habeas
corpus were an unqualified crime against the State, under
any circumstances, the argument that gives the power to
make but not unmake it, might be less than absurd, but not
so when the suspension is said to be as necessary as the en
actment. It is said Congress was bound in constitutional duty to
pass the act, and it would have been a violation of theif

— 23 —
duty to omit to enact it. Well, so it would be not to
enact the writ of scire facias and the Judiciary act ac
cordingly ordains that the courts " ahall have power to
issue writs of scire facias,. habeas corpus and all other writs
not specially provided for." The courts of the United
States shall issue writs of scire facias, habeas corpus and
all other writs not specially provided for by statute. Thia
is the will of Congress. But would it be a violation of
duty — that is the point, not whether it would be more or
less wise — if Congress should strike scire facias out of the
statute ; if they should discountenance the credit system to
an extent greater than we see in those countries where suits
for debts of certain kinds which we sue for every day are
excluded from courts of justice; if Congress should deter
mine that all commodities be sold for cash, and closed the
courts of the United States against scire facias and other
writs for the recovery of demands arising out of purchases
and sales ?
Would it be a violation of constitutional duty if they should
substitute heavy penalties against unlawful arrests as abetter
protection than the habeas corpus, and close the courts against
the writ in that form ? There have been free countries where.
there was no habeas corpus, where liberty was protected by
other ways and means. Why, then, should it be a constitu
tional or moral obligation upon Congress to adopt exactly
the forms of freedom thought to have been perfected in the
time of 31 Charles H. and 56 George HI? The writ of
habeas corpus we are assured, is very dangerous, and needs
occasional suspension ; will it be said that if there were one
which is never dangerous, and the use of which is always
safe and consistent with good order, it might not serve our
ends? K it be true that Congress might duly have substituted
for the habeas corpus some other remedy, and have omitted
to provide fer its exiatence at all ; if between it and another
writ they could choose, aa between scire facias and some

_24—
other mode of bringing parties into court, it would seem
to follow that to the branch of government to which be
longs the original duty of establishing the remedy belongs
also the derivative one of suspending it, if the Constitution
have made no express pro'vision to the contrary.
But let us suppose it not true that Congress, without the
aid of the habeas cor'pus clause, could have suspended the
writ. The clause is, as has been well said, restrictive, and not
enabling ; and further, as has been equally well said, nobody
¦will pretend that, without it, the President could either
make, repeal or suspend the writ. Now the argument may
be sound or unsound, which thence reasons to the point
that Congress had without the clause the power to make,
repeal or suspend. But the reasoning cannot be unsound,
if it stop short of that point, and go only the length of
insisting that the framers of the Constitution must have
supposed the power to suspend was where the power to
enact was, and must have intended by the Congress to follow
the word "suspended ;" for otherwise why was the clause
made restricting and not enabling ? They were restricting.
a power which they supposed existed. It may not have
^existed, but they supposed it did, or why restrain it ? They
never supposed the President could have permanently sus
pended the ¦writ of habeas corpu,s. They did not mean
to restrict him.
Again the argument on the othier side fails, not only
because ¦whether Congress had the actual right or not to
legislate away the habeas corpus the framers of the Con
stitution thought sb, but it fails also because they knew,
and in that they were correct, beyond all doubt, that Con
gress could modify it. If they could not abolish, they could
tamper with it. If they could not pass an act declaring it un
necessary to the liberty of the citizen, they could declare it
to be grantable only in term time, and not in vacation, they
could encumber it with delays, they could affix no penalties
to refusing, denying or delaying it, they could bring it down

— 25 —
to the level of any other writ. This manifest control over
the privilege ofthe writ the convention, by their restricting
clause, raay well have proposed to theraselves to place a limit
upon. They may have intended while they thought, as the
argument on the other side is, that Congress could not di
rectly do away the writ, that as they could reduce it to a
shadow, the clause by which its suspension was forbidden
except in given emergencies, was an useful check upon them.
Counsel have asked, where is found the power in the
Constitution to suspend the habeas corpus outside of the
habeas corpus clause? The argument is that, but for this
clause, there could be no suspension of the writ, either by
Congress, or the President : show, he says, the power which
authorizes Congress to suspend it.
I answer that I find it in the eighteenth power — the last.
"To make all laws which shall be necessary and proper for carrying
"into execution the foregoinst powers, and all other powers vested by
" this constitution in the government of the United States, or any ue-
" partment or officer thereof."
Ofthe powers bestowed on the Federal Government the
more important were given to Congress — to make war, to
impose taxes, to borrow money, and others, seventeen in
number. The exercise of not one of these functions of
sovereignty, — all of them complex operations, — could be
accomplished did not this 18th power authorize also the
necessary legislation to carry it through ; and not one of
them but might need for its protection and vindication the
whole energy ofthe government, a suspension of the habeas
corpus included. Does the gentleman mean to say that to
warrant its suspension there must be found a power on
purpose — Congress shall have power to suspend the habeas
corpus? Let him tell us why — let him say why, beside the
18th, he wants a special power to suspend the habeas corvus
more tha^n to take life or liberty in punishment of criraes. I
turn hira, in answer to his call, to the last of the powers of
Congress, submitting that by virtue of it, but ^'or the re-

— 26 —
strictive clause in the 9th Section of the 1st Article, by
which they are confined to cases of rebellion and invasion,
they could suspend the writ whenever it was " necessary
and proper for carrying into execution" any ofthe seventeen
powers, or any " other powers vested by the Constitution
in the government of the United States or any department
or officer thereof"
With their extreme closeness of interpretation, niggardli
ness I may call it, how is it possible to carry through, even
with the aid of the habeas corpus clause, the argument iu
favor of the President ? He is the Executive, he neither
makes nor suspends the laws, on the contrary, " shall take
care that the laws be faithfully executed," and here is a
clause of the Constitutiou^and there is noting else to
countenance hia pretension — to the eff'ect that the habeas
corpus shall not be auapended except in time of rebellion or
invasion. If the argument be open to him to take this right,
why not to the judiciary, or to one of the judges, or to the
Senate alone, or the House alone, or to the Vice-President, or
to the Executive, Legislative and Judiciary combined. Can
the Executive snap up any power, legislative or j udicial, which
is not distinctly and expressly designated to its proper depart
ment? " All Legislative power herein granted," saya the
Conatitution, " shall be vested in a Congress of the United
States." " The judicial power of the United States shall be
vestedin one Supreme Court and such inferior Courts as Con
gress mayfrom timetotime order and establish." " The Ex
ecutive power shall be vested in a President of the United
States of America." If power which i^ not in words dele
gated to its certain department, but which is not Executive,
may be handed over to the Executive!, that which is not
judicial to the Judiciary, that which is not legislative to the
Legislature, the Constitution is a chaos. To illustrate this,
let me take some of the powers or functions as to which nc
doubt can be reasonably suggested to what department
they are attributable, but not in words assigned to it.

—27 —
The Senate was to be divided, on its firat assembling into
three classes, the seats of two, four or six years. " They
ahall be divided, as equally as may be, into three classes ;"
but it is not said by whom. Oould the first President,
have claimed it, as an Executive right, to assign the six
years seats ? " The President shall, at stated times receive
for his services a compensation which shall neither be
increased nor diminished during the period for which he
shall have been elected." Who is to determine his com^
pensation but Congress? Yet the Constitution does not
say so; and it would be infinitely better to let him fix
his own salary than suspend the habeas corpus. The judges
of the Supreme Court shall at stated times receive a cora
pensation for their services, but it is not declared by whora
it should be fixed. Shall they settle it themselves, or shall
the Executive, or shall the Legislature ?
Take those clauses of the Constitution called miscella
neous, the function of carrying which out is neither Execu
tive merely nor Legislative, nor Judicial, and which is left
sub silentio, the Legislative portion of it to the Legislature,
the Executive to the President, and the Judicial to the
Courts. How should the division of their respective offices
among the branches of our governraent be made, in such
cases, if, as here insisted, the power of suspending the laws,
may be given to the President, and no regard is to be paid to
the constitutiqjial provision that the legislative power is in
Congress? For example: "The citizens of each State shall be
" entitled to all privileges and immunities of citizens in the
" several States." Persons held to service or labor in one
State by the laws thereof, escaping into another, shall be
given up to the party to whom such service or labor is due.
The United States guarantees to each State a republican
form of government. Are these provisions to be carried
out as best may seem to the Executive, Legislature and
Judiciary, without respect to the constitutional distribution
of the powers of the government ? Could the Executive or
3

— 28 —
Judiciary enact a fugitive slave law, and Congress execute it?
If the republican government ofa State were subverted and a
monarchy established there, could the President, having
called out the militia of the neighboring States, by virtue
of the acts of Congress under the Constitution, proceed to
set things to rights as if there were neither a Legislature
nor Judiciary in existence ?
When we reraember that the different branches of our
system are co-ordinate, that the Congress does not deter
mine the province of the President, nor the Judiciary that
of Congress, that each thinks for itself, and in its sphere ia
supreme ; that the people, in the jealousy, of their freedom,
have not bestowed upon one the force to rule therest — a force
existing in all governments but ours, that neither haa the
right nor power to control another, and that when they jar
there is none to compose their discord ; when we give to this
peculiarity — this delicate and dangerous peculiarity of our
system — its due regard, it must be plain that the most de
structive of heresies, for ua, is that which goes to reraove
the landmarks and confuse the boundaries of Executive,
Legislative and Judiciary.
I have now no more to say on the construction of the
habeas corpus clause, as its interpretation is looked for ou
the face of the section containing it. Let us, having looked
within the paper, now look without for the ij^eaning of thia
short sentence.
" For the meaning of the term habeas corpus resort may un
questionably be had to the common law," said Chief Justice
Marshall, in 4 Cranch 94 ; and why not for the meaning of
the term, suspension of it? Had the phrase, to suspend the
habeas corpus, or the suspension of the privilege of the writof
habeas corpus, an established meaning in 1787 ; and what was
thatmeaning? What was understood by it? Whatwasthe
habeas corpus, and what did they understand by its sus
pension ?

—29—
One thing is very certain, that the same words put into
any other than a charter of Englishmen, or those inherit
ing their laws and history, would have had no meaning
at all. Neither habeas corpus, nor suspension of the writ
of habeas corpus out of the English language, had any
meaning. They were not so much as translateable words.
But in the English language, and according to English
law and history, they were clear as light ; and no man for
an instant hesitated for seventy-four j^ears to say the habeas
corpus clause, as written down' in section 9, meant that
the writ which secured the personal liberty of individuals
could not be suspended by the Executive or Judiciary,
and that the Legislature could suspend but for the occa
sion', and when the common safety required it,
The framers of the Constitution of the United States were
all of them once English subjects, had ceased to be such, ac
cording to their own computation, some eleven years before
the date of that instrument, and only four years, according to
the British calendar. The revolution by which their Inde
pendence had been achieved was a thousand times declared
by them to have no other object than to vindicate their rights
to English laws and liberties, and among them none was
oftener, or more strenuously insisted on than thatof the habeas
corpus. In their petitions to the Crown and to Parliament,
in their remonstrances addressed to the people of England,
of which there are several extant, thqse, they said, were
what they demanded, these were their birthright, and for
these they declared they would fight, if necessary. These,
it was, which were claimed for them by British statesmen
who took the American side in the controversy vrith the
colonies, Chatham, Burke, Barr^ and the rest. The colon
ists claimed "the English principles of liberty," and the
" common law of England as their unalienable birthright."
Look at the State papers of the day, admirable specimens of
good sense and good writing they are, for the cause of our
separation from Great Britain, and it will be seen to be no-

—30—
thing but a determination not to be separated from English
law. The Quebec Act, which was one of the subjects of
bitter colonial complaint, was an act of Parliament by which
French laws were permitted to prevail in Canada, and the ex
istence of which on their border, and so near to them, filled
the minds of- the Colonists with horror. They hoped to con
vert to their way of thinking the Canadians, and addressed
long and eloquent appeals to them, setting forth in glowing
terms the advantages of British laws and British libertiea,
among which they brought forward the writ of habeas
corpus. When the Continental Congreaa publiahed their address
of the 5th of September, 1774, to the people of the colo
nies, "their friends and fellow subjects," as they called
them, they claimed, they said, only, and no more than, •
the benefit of British laws " and in claiming all the beneflts
"secured to the subject by the English Constitution to be
" as free as our fellow subjects in Britain." They especial
ly claimed " the benefit of the habeas corpus act, " the great
" bulwark and palladium of English liberty."
When the revolution had been made, and the Constitution
was framed, the population was for the most part of English
descent. They were provincial, and England had been the
mother country. When English liberty and laws had been de
nied them, and they broke into successful rebellion, the use
they made of their independence was to restore and improve
upon English liberty and laws. Whether to take from the
Legislature and to give to the Executive the power of sus
pending their liberties would have been an improvement is a
question to which I will -presently advert. But certain it is
that at and before '76 and in '87, the English Constitution,
republicanised, and English laws accommodated to the wants
of a newer and freer people, were the mark at which our an
cestors aimed. Accordingly the Constitution of the United
States abounds with, not only ideas and institutions, which

— 31 —
are directly and avowedly British, but with phrases which
like the privilege of the habeas corpus are unintelligible but
to Englishmen or Americans. To atterapt to read the Con
stitution of the United States without referring ourselves to
English History and English law would be vain labor.
What is a bill of attainder, what is a convention, what are
high crimes and misdemeanors if we reject English history ?
What is trial by jury, what are cases in law and equity,
what is felony yrithout the English law books ? Of the
ten articles of amendment which were recommended for
adoption by the first Congress, but two years after the
sitting of the convention, and now stand as part of the
Constitution three only would be comprehensible with
out appeal to English precedent. Freedom of speech, and
freedom of the press, the right of petition, are words to be
understood as they have been understood in England, in the
English sense intensified by the American revolution.
What is the right to keep and bear arms, the security against
unreasonable searches and seizures, what is probable cause,
what is being put twice in jeopardy of life and limb,
what is being compelled in criminal cases to be witness
against oneself, what is due process of law, what is speedy
and public trial, the accused being informed of the nature
and cause of his accusation, and confronted 'with wit
nesses, what is excessive bail, excessive fines, cruel and un
usual punishment, what do these things mean without the
English precedents ? When we bargained against cruel
punishments, excessive bail, being put twice in jeopardy,
and for trial by jury and the writ of habeas corpus, all this
to which the States bound the Federal Government, — ^the
terms on which they consented to surrender a portion of
their freedom, — were contracts for and against these things
iu the full English understanding, and more too. What
would have been the astonishment and disgust of the peo
ple, had they been told, and how quickly would they have
rejected the Federal Conatitution, could they have suspect-

— 32—
ed that trial by jury meant less than the English trial, that
to call a Convention to alter the Constitution meant less
than the English convention of 1688, that it meant a diet or
body not elected by the people, that freedom of speech and
of the pr^ss and the privilege of the writ of habeas corpus
were a privilege and a freedom of inferior stamp to the
English !
But this is not all. The difference between the suspen
sion of the habeas corpus in England and here, if we are to
believe those who have taught Mr. Lincoln and would in
struct us, is from a suspension by the Legislature to a suspen
sion by the Executive. Very well ! Now the Executive right
is nothing iu the world, but that prerogative, so famous in
English History as the dispensing power, one of the tyrannies
which had disappeared in England long before the era of our
independence, but which in theAmerican ante-revolutionary
remonstrances had a prominent place, and there was held to
be a mere abomination. In the "secOnd petition of several
natives of America to the House of Commons of Great Brit
ain in Parliaraent assembled, presented May 2d, 1774," after
the passage of the then late two statutes, aimed at the people
of Massachusetts, they say of that for "the more impartial
administration of justice in Massachusetts Bay" — " The
" dispensing power which this bill intends to give to the
" Governor, advanced as he already is above the law, and
"not liable to any irapeachraent from the people he may
" oppress, must constitute him a tyrant" — And in the same
paper speaking of both statutes: "It is with infinite and
" inexpressible concern that your petitioners see in these
" bills and in the principles of them, a direct tendency to
" reduce their countrymen to the dreadful alternative of
" being totally enslaved or compelled into a contest the
"most shocking and unnatural, with a parent State which
" has ever been the object of their veneration and love."
Now, is not the suspending power, as claimed by Mr. Lin
coln, that dispensing power, which was one of the leading

—83 —
causes of the revolution of 1688 and a feature of our re
monstrance of 1774 ?
In England they suspend the habeas corpus by act of the
Legislature. The houses of Parliaraent, for a period of time
which they fix, enact that when six Privy Counsellors, or one
ofthe Secretaries of State,put their names to awarrant charg
ing an individual as guilty "of high treason, or as suspected
of it, or of treasonable practices (not disloyal which means
nothing), and authorizing his commitment to prison, he
shall be neither brought to trial nor bailed without au order
of the Privy Council. To this restriction of liberty they
add a clause saving the privilege of Parliament, that no
member of the Legislature shall be arrested during the
sitting of the house to which he belongs, without their
leave asked and obtained, and without a coramunication to
them of the matter of complaint against him. Sir Williara
Wyndham and other Jacobite gentleraen had the benefit
of it in 1715, when George I. sent to ask leave of the
House of Commons to seize and confine them. This is
the substance of all the suspending acts, passed since the re
volution of 1688, of which there have been about eight in
au hundred and seventy-three years.
It is a law which can only get through Parliaraent under
a perfect storm u)f opposition ; it is open every day, when
the houses are in session, to inquiry on the part of mem
bers, and they use it freely, as to the condition of prisoners
and the causes of their commitment, and they are, be it
remembered, but few in number. It is liable to repeal
at any moment when the will «f the nation, as expressed
by the popular branch of the Legislature, deraands a return
to the fullness of its freedora. Such is a suspension of the
habeas corpus in aristocratic England, whore the Legislature
suspends.
' With us it could be no more or less, if Congress suspended.
But give the right of suspension to the President, and it is
the old'Eaglishdispensing power. In England the King could

— 34 —
once dispense, as he claimed, with an act of Parliament ; he
could dispense with or suspend for a tirae, its execution.
In the United States, the President's dispensing power,
more limited in its scope, would be more forraidable in
its effect, than, this prerogative was. The King of England
could dispense with by admission, certain classes of stat
utes — enough of them to make the prerogative dangerous
to liberty, but not all. The President of the United States
would dispense with one only, but that is the statute of free
dom, of which it may be said, that, take it away and all others
follow and disappear. The monarch could dispense with a
statutory prohibition, or penalty, but not with the habeas
corpus aet. Under no view of prerogative that ever received
general countenance could he have done that.
Here then we have, not a law repealable by the Legisla^
ture, by which in a certain way, for a limited tinie, and subr
ject to checks and conditions, liberty is suspended by the sus
pension of the means of enlargement from custody in case
of arrest. We have — God help us — a line and a half in
the Constitution to the effect that the President raay sus
pend the habeas corpus, when, by reason of rebellion or in
vasion, the public safety raay urge him to it; and the argur
ment is, a sound one, if the premises be admitted, that, as
it is the Constitution which gives the power, Congress can
neither add to, nor subtract from, nor control it, nor con
strue it, nor for one moment lay on it their meddling hand.
It is beyond the reach of the Legislature. What is rebel
lion ? What is invasion ? The Congress does not know,
and the President alone can say. What is the decree of
public safety at which the country is to be kept? He
must determine. For what time shall the suspension
last ? The President will say. What notice is to be given
of it ? None at all, none was given in July, 1861. The
arrest is notice enough. This is a prodigious exaggeration
even of the dispensing power; it is an edict, a rescript, an

— 35—
order of the day, which has not about it an atom of free
government. Half a century ago we were more difficult. In Jan
uary, 1807, the Senate passed an act suspending the
habeas corpus; butthe House of Representatives, contempt
uously, by a motion to reject, the same day they received
the bill, threw it out, there being but nineteen votes in ita
favor. It was sent to the House by the Senate as a secret
communication, to be received with closed doors. They
ordered " that the message and bill received from the
"Senate ought not to be kept secret and that the doors be
" now opened."
A President of the United States, if honest and wise,
may be as good a judge of a public exigency as the Congress,
and may, more readily than they, make up his mind, when
it comes to action on it, but who does not see the
difi"erence between a subject like the suspension of the ha
beas corpus being dealt with on the one hand in debate, first,
and then by a law — a statute — and, on the other, by the naked
fact of the arrest of a citizen. The one is legislation, de
liberative, plain and open ; why is it resorted to, the manner
in which it is to operate, and the time of its duration are
before the people ; the other is prerogative. Let the Pres
ident have — and who has not — his "pliant hour," — let him
be liable io mistake — and who is not — and where are we ? A
minion, a mistress, a boon companion, a creeper in ante
chambers, and up back stair-cases, a false friend, ora soaring
minister who has an injury to avenge, or ends to serve, ex
ercises a little influence over the human frailty of a single
individual, and no man ie safe !
With the suspending power we are free, with the dis
pensing power we are slaves. We are free when we elect
a Legislature to make laws for us, for that is representative
government, the freest known to modern policy. We are
not free when we elect one man to make laws for us, or,
what is the same thing, to suspend them. There is liberty

—36 —
where the Legislature makes the laws, and the Executive
executes them, but there is none if he make the law and
execute it too. If, by the Constitution, the President could
raise and support armies, where would we be ? And where
are we, if, to recruit the ranks of the army, he can suspend
the personal freedom of individuals ? At Rome, the Senate,
in what they deemed great emergencies appointed a dicta
tor, but our dictator appoints himself! He is the judge of
the emergency which calls for dictatorial service;
If this newly imagined right of the President be the dis
pensing power revived — and it is nothing else — let rae add
that it is a prerogative which, after long vexing the British
people, proved at last fatal to their Executive, and was the
main instrument in pulling down, in 1688, a system more
ancient and more solid than any we have on this continent.
Hallam, after noticing the variety of English opinion which
had prevailed, from age to age, touching the extent and
limits of this power, and, particularly, those of eleven of
¦ the twelve judges in a well known case under James II,
adds that —
" It was the doctrine of the judges, that the king's inseparable and
" sovereign prerogatives in -matters of goverwment could not be taken
" away or restrained by statute. The unadvised assertion in a court
" of justice of this principle, which, thou?h not. by any means novel,
" had never been advanced in a business of such universal concern and
"interest, — may be said to have sealed the condemnation ofthe house
" of Stuart. It made the co-existence of an hereditary line, claiming
" a sovereign prerogative paramount to the liberties they had vouch-
" sated to concede, incompatible with the security or probable duration
" of thoae liberties. This incompatibility is the true basis of the Re-
« volution of 1688."
But it is not only that it seems to the last degree im
probable our free ancestors, flushed with the success ofthe
revolution, would have come down to such baseness. We
know they did not. We have it from the strong friend of
a stronger government than the people would bear, Mr.
Hamilton hiraself, through the papers of the Federalist,
that no such thing was imagined as to bestow on the Presi-

— 37 —
dent this power of suspending of the Constitution. We
have it from the Federalist, numbers 67—77 inclusive,
which treat the subject of the Executive, and are from
Mr. Hamilton's pen. The greatest jealousy existed in
many well disposed minds of the powers proposed to be
conferred on the President. "The authorities," said the
writer of the Federalist No. 67, " of a magistrate in few in-
" stances greater, in some instances less than those of a
"governor of New York have been magnified into more
" than royal prerogatives. These attempts to misrepresent
"the new executive render it necessary to take an accurate
"view of its real nature and form;" and, accordingly,
eleven numbers are devoted to that object, in the course of
which Hamilton, beside a general and special disclaimer of
any dangerous attribute to the President, gives one num
ber, 69, exclusively to a. parallel between the President and
the King of Great Britain, on the one hand, and the Presi
dent and the Governor of New York, on the other ; aud
five numbers, 73 — 77, almost exclusively, to a minute
analysis of the powers of the President, taking them up
one by one, and examining each separately.
It will be agreed, it ought to be, that if Mr. Hamilton
supposed the right of suspending the habeas corpus was
among them, he owed it to his task not to omit a commen
tary on it. He could not have passed it by. And as it is
unnoticed by him, the alternative is,, either, that he did not
understand the Constitution or that he knew the habeas
corpus clause concealed a formidable engine of executive
tyranny, hidden in the studied obscurity of language, and
intended to be unseen and unknown until time should un
mask it. Either supposition is out of the question, and
it may be added that if this suspending power of the
President really does lie buried in the habeas corpus clause,
every member of the convention who was silent when Mr.
Hamilton, Mr. Jay,and Mr. Madison defended the projected

— 38 —
constitution in the papers known as the Federalist, was
accessory to a fraud on the country.
Now has or has not the Federalist barred the President
from all pretensions to a power to suspend the habeas corpus ?
In No. 73, Hamilton, after briefly treating the Constitutional
pro^vision that the President's salary should neither be in
creased nor diminished during the term for which he was
elected, and having in the immediately preceding numbers
70, 71 and 72, considered the points of the unity of the
Executive, the duration of his term of office, and his re-
eligibility, and ha^ving in Nos. 67, 68 and 69 canvassed
what is called " the Constitution of the Executive Depart
ment," and the mode of appointment ofthe President, and
made the comparison between his office, on the one hand,
and those of the King of Great Britain and Governor of
New York on the other, thus proceeds : "The last of the
" requisites to energy which have been enuxnerated is com-
" potent powers. Let us proceed to consider those which
" are proposed to be vested in the President of the United
" States. The first thing that offers itself to our observa-
" tion is the qualified negative of the President upon the
"acts or resolutions of the two houses of the legislature,"
a subject which occupies the rest of No. 73. In No. 74 the
pardoning power of the President, and his position as Com
mander-in-chief ofthe land and naval forces, are considered.
In No. 75 the treaty making power. In No. 76 thb ap
pointing power. In No. 77 the examination of the ap
pointing power ia reaumed and concluded.
The ¦writer now aaya :
" The only remaining powers of the Executive, are .comprehended
" in giving information to Congress of the state of the Union ; in
" recommending to their consideration such measures as he shall
"judge expedient; in convening them, or either branch, upon extra-
" ordinary occasions ; in adjourning them when they cannot them-
*' selves agree upon the time of adjournment; in receiving ambassa-
" dors and other public ministers ; in faithfully executing the laws ;
" and in commissioning all tte officers of the United States.

^39 —
" Except some cavils about the power of convening either house of
" the legislature, and that of receiving ambassadors, no objection has
" been made to this class of authorities ; n6r could they possibly
"admit of any. It requires indeed an insatiable avidity for censure,
" to invent exceptions to the parts whioh have been assailed. In re-
" gard to the power of convening either house of the legislature, I
" shall barely remark, that iu respect to the Senate at least, we can
" readily discover a good reason for it. As this body has a connur-
" rent power with the Executive in the article of treaties, it might often
" be necessary to call it together with a view to this object, when it
" would be unnecessary and improper to convene the Houae of Repre-
" sentatives. As to the reception of ambassadors, what I have said in
" a former paper will furnish a sufficient answer.
" We have now completed a survey of the structure and powers of
"the Executive department, whioh, I have endeavored to show, com-
" bines, as far as republican principles will admit, all the requisites to
" energy." Such Mr. Hamilton, supposed to. be the powers, and the
only powers, of the Executive, under the Constitution ; that
is, the veto power, the command ofthe forces, the pardoning
power, the treaty making power, the appointing power, the
power to give information to Congress on the state of the.
Uuion, and recommend measures to their consideration, to
convene them or either branch, on extraordinary occasions,
to adjourn them when they could not agree on a time of ad
journment, to receive ambassadors and other public minis
ters, to execute faithfully the laws, and comraission all offi
cers of the United States. Until the present Attorney
General, in his communication to the President of the 4th
July, 1861, disinterred and developed another and the great
est of them, so thought all the world. No statesman, no
citizen, saw more Executive power in the Constitution than
had been seen by the founders of it, and the commentators
on their work — ^the writers of the Federalist.
If Hamilton in combating objections to the plan in No.
77, had said, some persons have been even reckless enough
to assert that we have by this paper left it open to question
whether the President might dot suspend the habeas corpus,
but that is a position too monstrous to need refutation, he

--40-
Woilld at least haV3 informed posterity that thia chimera
was in men's heads. But when, after stating, one by one,
certain of the Executive powers, namely, the veto, the pow
er of mercy, the comraand of the armed force, the treaty
making power, the power of appointment, he goes on to say,
"the only remaining powers of the Executive"'—" tSe only kb-
MAiNiNG powers" are the powers which he proceeds to enu
merate, and in the list makes no mention of a power to
suspend personal liberty, then — granting Hamilton to have
been a member of the Convention, and assuming him to
have understood the Constitution in its more important
features, but not more — I say the door of doubt is shut,
and the gentleman raay batter it as he pleases.
But I ask further attention, for a moment, to No. 69, in
which the comparison is made between the powers of the
President and those of the Governor of New York and the
King of England, because neither the Legislature nor Go
vernor of New York having power to suspend the habeas
corpus, under the organization of that State, as it existed in
1787, nor the King of England, at any tirae, the oraission
to notice, in the parallel of the President with the monarch
and the Governor, this supposed overwhelming authority
of the Executive of the United States to suspend the per
sonal liberty of the citizen is fraud, or nothing. A power
leading directly, when used with such object, to the estab
lishment of a tyranny, ia an accidental omission quite out of
the question with statesraen and publicists who were exam
ining elemental principles and proposing a form of goveru-
ment not yet adopted ; a government which the country was
free to accept or reject.
The position and powers of the British King and the
New York Executive are analyzed and criticised; the
hereditary monarch, the Governor for a term of three
years, the immunity of the king, the liability to impeach
ment of the republican magistrate, the executive re-
visionary authority of the acts of the Legislature of New

York, the British veto power, the command of the naval
and land forces equally a function of each, the uncontrolled
pardoning power of both, the proroguing power of both,
their appointing power and other powers and functions are
compared with those proposed to be bestowed on the
President of the new republic. The parallel ia carried out
laboriously ; the writer undertaking to show the Presi
dent's power to be in all cases much less than that of the
King, in several inferior and in some superior to that of
the Governor, and then giving his judgraent ofthe relative
powers of the Governor of New York and the President of
the United Statea in these words :
" Hence it appears, that except as to the concurrent authority of the
" President in the article of treaties, it would be difficult to determine
' ' whether that magistrate would, in the aggregate, possess more or
"fes power than the Grovernor of New York. Audit appears yet
" more unequivocally, that there is no pretence for the parallel which
"bas been attempted between him and the King of Great Britain."
But there is a point taken, in the course of the argument
that the proposed powers of the Executive of the United
States are not more dangerous to liberty than those then
actually exercised by the Governor of New York, which
merita particular notice. After explaining the difference
between the control of the army and navy, as possessed by
the Cro"wn of England, and that exercised by the Governor
of New York, and saying that in two of the States, New
Hampshire and Massachusetts, the Executive powers were
perhaps larger than could be claimed by the President
of the United States, while those of the Governor of New
York were quite as considerable as those of the Presi
dent, he passes to the subject of " Conspiracies and plots
against the Government" of the United States or that
of New York, one, he thinks liable to be affected by the
possible use of the pardoning power; or the advantage of
the Executive in being, as he expresses it, " screened from
" punishment of every kind by the interposition of the pre-
" rogative of pardoning;" and he invites nbtice to the eir-

—42 —
curastance that while the Governor of New York may
pardon all offences but murder and treason, even those for
which the guilty party has been impeached, the President's
right of pardon does not extend to crimes where there has
been a conviction on impeachment. Here, looking to the
dark side of the picture, and glancing with proph'Jtic eye
at the future, Hamilton thinks, that as concerns "con-
" spiracles and plots, against the government which have
"not been matured into actual treason," and in which the
Executive raay have taken part, the difference between
chief magistrates, who can or who cannot pardon their own
accomplices, is one to be looked to. He has just regarded
them as commanders of the armed force ; and now looking
at them as invested also with the attribute of political
mercy, he points with jealous finger to the silly or wicked
Executive, who himself a plotter against his country, can
after using in vain his power to overturn its institutions,
and after his conspiracy has failed, screen behind hia par
doning power his fellow conspirators. Let anybody read
what the Federalist anticipates of peril to the State, did the
right of the Executive extend to the pardon of his owu
accomplices, and imagine what would have been the ap
prehensive forecast of the same mind, called to consider
the same Executive armed, at the sarae time, with the ad
ditional power of facilitating his vile plots against the State
by a Constitutional right to seize and hold at pleasure the
persons of all citizens who ventured to interfere with his
nefarious schemes.
" The Governor of New York may pardon in all cases, even in those
"of impeachment, except for treason and murder. Is not the power of
" Governor, in this article, on a calculation of political consequences,
" greater than that of the President ? All conspirjicies and plots
"against the Government, which have not been mature! into actual trea-
" son, may he screened from punishment of every kind, by the inter*
" position of the prerogative of pardoning. If a Governor of New
" York, therefore, should be at the head of any such conspiracy, until
" the design had ripened into actual hostility, he could insure his accom-
" plices and adherents an entire impunity. A President of the Union;

— 4;3 —
" on the other hand, though he may even pardon treason, when prose-'
" cuted in the ordinary course of law, could shelter no offender, in any
"degree, from the effects of impeachment and conviction. Would not
" the prospect of a total indS&nity for all the preliminary steps, be a
" greater temptation to undertake, and persevere in an enterprise'
" against the public liberty, than the mere prospect of an exemption
" from death and confiscation, if the final execution of the design, upon
" an actual appeal to arms, should miscarry ? Would this last expec-
" tation have auy influence at all, when the probability was computed,
"that the person who was to afford that exemption might himself be
" involved in the consequences of the measure ; and might be incapa-
" citated by his agency in it, from affording the desired impunity ?".
Hamilton was regarding the "plan" with the eye ofa law
giver. He looked on all sides, and to every thing. He ex
amined it in detail. Here might be a danger, and he showed
it was none. There was a contingent advantage, and he
availed himself of it. He knew that the ship of State
might be saved or foundered by a single plank. But if he
praised the ship for such details as this supposed advantage
in the possible case of plots and conspiracies, and said no
thing of the power over the habeas corpus he over-reached us ;
he was like a navigator who recoraraends his friends to era-
bark in a vessel because she has a new set of puraps, but
says nothing of the hold being full of combustibles with a
slow match and train to blow every thing into the air.
Here then is Mr. Hamilton on the Constitution, Mr.
Hamilton on the habeas corpus clause of it. It is vain to
say with his commentary before us on Executive powers,
that it ever entered into the views of the framers of that
instrument, that the President should wield this authority.
Hamilton went into the Convention, the advocate ot what
is called a strong Government ; he was disappointed in obtain-
ifig one ; his plans were overruled ; but his patriotisra got the
better of his disappointraent, and he lent his skillful hand
togivefinish and perfection to the schemes of others. When
the^^n,asit was called, was at last agreed on, and signed and
submitted to the people, he united with Mr. Madison and
Mr. Jay in defending it frora the attacks, at every side made
4

• -44-
on it, and in advocating its adoption. Did this person misun
derstand the Constitution ? Did he misrepresent it ? Did
a man, for whom is claimed by his admirers, the first place
amons: American statesmen, and whose honor was as con-
spicuous as his genius, through ignorance or through mal
ice lead us into this dire mistake which was discovered the
4th of July 1861 ?
2>fo — the mistake is our own — in the strain of a rev
olution we have taken to reading the Constitution as we
would read a penal statute — to pick a hole in it. If we look
to it to carry out our wishes or fancies, and with deter
mined contempt of the purposes of its founders, if the ob
ject is to catch them napping, we may, perhaps, pin them
on a word, and be able to turn liberty out of doors. We
raay find for a grasping Executive, the dispensing power
to-day, sorae other to-morrow, and a throne at last.
But great institutions must be ¦studied by the light of
eventsaud thespirit of the people to whom they belong. The
people of the United States made their Constitution to
secure liberties which they had achieved by a revolution.
When we put into it the words by. the .President, in the
habeas , corpus clause, we round a sentence, and give ourselves
a master. Language is imperfect — that is true — and liable
to be misunderstood, but the spirit and general purpose of
a writing is rarely misapprehended. To seek the letter
to the neglect of the spirit of a charter of govem
ment is to make our voyage by following the sinuosities
of the shore when the wide sea lies open before us.
The meaning of the English Constitution has overgrown
its letter, until it seems to be almost foreign matter to it..
The letter can tell us nothing. According to it the King -
chooses his ministers, appoints to office, vetoes laws, names
the speaker, makes war and peace, and does not make
members of the House of Commons. In point of truth,
down to 1831 he made a large portion of the House of
Commons, and many of them he makes yet, and they, not

— 45 —
he, choose the ministers who perform those functions of the
state which he only seems to perform.
Right or wrong, it is the spirit of the American Consti
tution to make the legislative arm powerful, and the Execu
tive arm weak. We have taken executive powers and be
stowed them on Congress, but where is the legislative
power which we have given to the President ? The power
of war and peace is regarded as executive : we have raade
it legislative. So with granting letters of marque; so with
coining money; so with making rules for the government
and regulation of the land ^nd naval forces; so with the
power to provide for calling out the militia, and for
Organizing, arming, disciplining and governing them
when employed in the service of the United States. Thus
have we laid our course, these are our institutions. Do we
mean to change them — to haul down our colors and surren
der at the first shot that is fired into us ? To throw overboard
our best anchor in the first squall? Shall we be blundered
out of our liberties? Shall we yield them to a finesse?
The learned gentleman, if he will pardon a still more
ignoble illustration, with great respect be it said, and
granting what is so far from admissible, that in groping
the Constitution he has rummaged out an incomplete sen
tence, or words the meaning of which might be clearer, may
be compared with an idle boy who disturbs the bottora of a
stream to fish up at the end of his stick some dripping mass
of incongruous and eccentric matter, which lying there siucu
the flood had done no harm, and when held up in triumph
by the discoverer of it, is but a congeries of nothings.
Mr. Gouverneur Morris, and in citing him I appeal to no
enemy of executive power, said of interpreting the Consti
tution in writing to Mr. Pickering in 1814, " This must be
" done by comparing the plain import of the words with
"the general tenor and object of the instrument." The
plain import ofthe words with the general tenor and object
of the instrument 1 Why they seem to have forgotten all

—46—
that totally! Allow me, too, to quote a section from
Story on the danger of taking words and phrases of the
Constitution at the cost of its true sense :
" But the most important rule, in cases of this nature, is, that a
" constitution of government does not, and cannot, from its nature,
" depend in any great degree upon mere verbal criticism, or upon the
" import of single words Such criticism may not be wholly without
"use; it may sometimes illustrate, or unfold the appropriate sense;
" but unless it stands well with the context and subject matter, it must
" yield to the latter. While, then, we may report to the meaning of
" single words to assist our inquiries, we should never forget, that it
"is m instrument of government we are to construe; and, as has
" been already stated, that must be the truest exposition, which best
" harmonizes with its designs, its objects, and its general structure."
Let us pass frora the era of the Federalist to the second
term of Mr. Jefferson, from speculation on the habeas corpus
to the bill passed to suspend it by the Senate of the United
States, and sent for concurrence to the House on the 28d of
January, 1807. The Senate, considering Mr. Burr and
his adherents as in rebellion against the government, and
that the public safety required it, passed unaniraously a
bill bywhich it was enacted that "the privilege ofthe writ
" of habeas corpus shall be and the sarae hereby is suspended
?'for and during the terra of three months from and after
"the passage of this act, and no longer," and Mr. Smith, of
Maryland, was appointed to carry it to the House of Repre
sentatives, with a message requesting thera to receive it in
confidence, and act on it as speedily as the emergency
seemed to demand. The bill had been reported to the
Senate by a special committee raised to inquire ¦whether
the suspension was expedient, consisting of Mr. Giles, the
distinguished Senator from Virginia, Mr. John Quincy
Adams, then one of the Senators from Massachusetts, and
General Smith, long a Senator from Maryland. General
Smith having taken the bill to the House, with the Senate's
message, they refused, by a vote of 123 against 3, to receive
it confidentially, or keep the doors closed, and Mr. Jeffer-^
son's son-in-law, Mr. Eppes, of Virginia, moved th,Ht the

— 47 —
bill be rejected, a motion which prevailed' by a vote of 113
yeas to 19 nays. The rejection was followed soon after by
a motion of Mr. Broora, of Delaware, one of the merabers
in opposition, that it vvas expedient to raake further pro
vision by law to secure the privilege of tho writ of habeas
corpus to persons in custody under authority of the United
States, a motion which was three days under debate, which
was made the vehicle of the strongest party assaults on the
President for his conauct in, as was alleged, countenancing
the violation of the habeas corpus act at the moment of the
arrest of the friends of Mr. Burr, and which at last failed
by a vote of 58 to 60. But it occurred to nobody, in either
house, to doubt their right to suspend the habeas corpus^
or to suppose that such a power existed in the Executive,
though the occasion was one to call out all the ingenuity
of the friends of the administration, party heats and ac
cusations against thera running high. The circurastances
which attended the, introduction of this bill, and the debate
on it, were of a sort to make it irapossible to believe, were
such a thing for a moment credible, that a constitutional
provision, which changed the whole aspect of the case, was
overlooked, and that had the suspending right been in the
President, and not inthe Congress, it would not have been
eagerly recognized by the friends of Mr. Jefferson.
I do not know thatthe annals of those times definitely in
form us how there happened to be between the Senate and
House so striking and decided a difference cf opinion as ap
pears in their respective votes, that of the Senate, taken the
23d January, and of the House the 26th, only three days af
ter, no events appearing by the debate in the House to have
occurred or become known in the mean while, to warrant
their carrying by a prodigious majority a raotion to reject,
withofit reading, a bill which had just before had the un
animous assent of the Senators. It may be that a sudden
alarm rapidly subsided. The Senate debates of that day
do not appear, but those of the House show plainly that

—48 —
the occasion was one when the friends of the Government
would have been relieved from what was a position of much
erabarrassraent, could they have attributed to the Presi
dent the right, which all agreed was in Congress, to suspend
the privilege of the writ of habeas corpus.
Geu. Wilkinson, coraraanding at New Orleans, had de
clared martial law, and arrested parties charged to have
been concerned with Colonel Burr, and sent thera by sea
to Washington, refusing to respect Ihe mandates of the
courts of justice of Louisiana, to which application was
made by the prisoner's friends, and treating with conterapt
writs of habeas corpus which were served on hira or his sub
ordinates. Mr. Jefferson, who had coraraitted himself to an approval
of his conduct in seizing and sending these persons to
Washington, had to encounter for it the heaviest fire of
the opposition. They held him responsible for a violation
of the Constitution. His friends had to defend them-
selves as well as they could. He was most anxious to de
tain the prisoners nnd bring them to punishraent, and
his displeasure at the course of justice, as adrainistered by
Chief Justice Marshall, and which appears by what haa
been left behind him in various forma, waa extreme.
Now what had the president to do, when his friends in
Congress were with difficulty bearing up against the as
saults upon him, and when he was just about to undergo
the mortification of seeing his prisoners set at liberty by the
Court under the opinions in 4th Cranch ? Why simply to
use the Constitutional power if he had it, and hold the
prisoners, or if he did not think proper to do that, to point
to it — to allude to its existence ! The Senate with the
proof of rebellion before them, by an unanimous vote, had
declared their judgment that the public safety required
the suspension of the habeas corpus. Mr. Jefferson may
not have thought so. Hia opinion on thia point has not
reached posterity. But if he differed with the Senate,

— 49 —
and coincided in the contrary conclusion of the House of
Represenj;atives, still it is most strange, pressed as he
was, that neither he or any of that majority of the House
which stood by hira, bethought themselves to sa/ that
here was instead of the violence and tyranny so .oudly
charged. Executive moderation and virtue exhibited in
abstinence of the most unusual kind ; that the President's
was the case, as surely it was if he held in his hands the
power pf suspending this writ, of one who submitted to be
censured for extreme conduct when he had acted the most
forbearing of parts ; that having the power to arrest and
hold without bail, and with the recent vote of the Senate
to encourage him to the iramediate exercise of his Consti
tutional authority — rather than resort to it — rather than sus
pend the freedom of the citizen, he had patiently sufl'ered
all the imputations which had been heaped on his conduct
for countenancing an act of vigor of a military officer which
'he had but to adopt and make lawful ; instead of which he
stood by and saw* all the fruits and advantages of it slip
from his hand by the dismissal of the prisoners in the or^
dinary course of the administration of that very law which
he was empowered to suspend !
Did Mr. Jefferson and his friends know — that is the
question — that he was authorized to resolve the difficulty
as Mr. Lincoln has ? Did they hold their tongues when
they had only to speak and overthrow the opposition at a
word, — by reminding them that if the limits of the Consti
tution had been for a moment transcended by the course of
a functionary of the Governraent, which had not been re
pudiated, it was to avoid the hard necessity of Executive re
sort to a more extrerae but always Constitutional raeasure ?
If this was Mr. Jefferson, he was surely the most artless
of men, the most innocent of politicians ! If — to fall back
on a warlike metaphor — sueh was strategy in 1807, I can
only say it goes far to justify some of the self-rcarnage of
1862 ; for it was the case of a commander in a position de^

— 50 —
fended by an abattis aud rifle pits, vvith, behind, a double
line ol breast worka bristling with cannon, who handsome
ly comes down to engage the eneray in a swamp mid-leg
deep.'^' I leave this decision, this judgment passed by two
branches of the government, the legislative and executive,
against the right of the President to suspend the habeas
corpus, with one raore observation on these most strange
'* As these papers are passing through the press, the attention of the writer
is called, by a friend, to 'what seems to settle conclusively, that Mr. Jefferson,
at least, to the year 1821, and his 78th year, thought with the rest of the
world that Congress, alone could suspend the habeas corpus. At pages 67-8 of
his Memoirs, Correspondence, &c., (London, 1829,) among what he calls
" dates and facts concerning myself for my own more ready reference, and for
" the information of my family," begun, he says, 6th of January, 1821, at tho
age of 77, will be found the following observations upon the work of the
framers of the Federal Constitution :
" This Convention met at Philadelphia on the 25th of May, 1787. It sat
" with closed doors, and kept all its proceedings secret, until its dissolution on
" the 17th of September, when the results of its labors were published all
"together. " I received a copy early in November, and read and conteraplated its pro-
" visions with great satisfaction. As not a member o'f the Convention, how-
" ever, nor probably a single citizen of the Union, had approved it in all its
,'• parts, so I, too, found articles which I thought objectionable. The absence
•' express declarations ensuring freedom of religion, freedom of the preaa,
" freedom of the person under the uninterrupted protection of the habeas cor'
" pus, and trial by jury, in civil, as well as in criminal cases, excited my jeal-
"ousy ; and the re-elegibility of the President for life, I quite disapproved.
" I expressed freely, in letters to my friends, and most particularly to Mr.
" Madison and General Washington, my approbations^ and objections. How
" the good should be secured, and the ill brought to rights, was the difficulty.
" To refer it back to a new Convention, might endanger the loss of the
" whole. " My first idea was, that the nine States first acting, should accept it un-
" conditionally, and thus' secure what in it was good, and that the four laat
" should accept on the previous condition, that certain amendments should be
" agreed to ; but a better course waa devised, of accepting the whole, and truat-
"ing that the good sense and honest intentions of our citizens, would make
" the alterations which should be deemed necessary. Accordingly, all ac-
" cepted, six without objections, and seven with recommendations of specified
" amendments. Those respecting the press, religion, and juries, with several
" others of great value were, accordingly made ; bul the habeas corpus was left
" to the discretion o/ Congress, and the amendment against the re-elegibility of
" the President was not proposed."
See also — for reference to which the writer ia indebted to the same source-
page 446, Vol. 2 of Mr. Jefferson's Complete Works, aa published by order of
Congress in 1853, a letter to Mr.. Madison, dated Paris, 31at July, 1788, for
Mr. Jefferaon's opposition to all suspension ofthe habeas eorp-us under any
circumstances whatever.

— 51 —
events, as I am to suppose they are in the eyes of the
statesmen who now rule us, and that is that there were
two Senators who 'must have voted on the 23d January
1807 for the'suspension of the writ by Congress, Mr: Gil-
man a Senator from New Hampshire and Mr. Baldwin a
Senator from Georgia, both of whom were merabers also
of the Convention which fraraed the Constitution, and
both of whom, therefore, were as untaught in its pro
visions as were Mr. Hamilton, Mr. Jay and Mr. Madison.
The vote of Mr. Oilman and Mr. Baldwin in 1807, the
speculations of Mr. Jay, Mr. Hamilton and Mr. Madison in
1788 go to show either the profound and marvellous blind
ness of them all, or the truckling of the Attorney General
to usurping ignorance in 1861.
The case of the parties sent to Washington from New
Orleans, by General Wilkinson, next came before the
Supreme Court,' and Chief Justice Marshall delivered the
two opinions, reported in 4 Cranch, the first deciding the
right of the Court to issue a habeas corpus, and the second
discharging the prisoners under it from their commitment
for treason, saying, in the words of late so often repeated
by those who cry out for their liberty, that it was Congress
only, which by suspending the writ could for a moment,
deprive us of its blessings. But what that great magistrate
' said is impugned as obiter.
Whether this is a just criticism may be doubtful, under
the reasoning of 1861, which makes the ac't of the Executive,
without proclamation, without announcement, — the fact
itself of the citizen being arrested and held by the Ex
ecutive, in time^ of rebellion or invasion, — a Constitutional
suspension of the habeas corpus. If the seizure of citizens
is to be construed into a suspension of the writ under the
9th section of the 1st article, which calls, it is argued, for
no legislation by Congress, no notice oh the part of the
Executive to give form to this exercise of his power, if the
blow without the word be enough, aud constitutionally
5

— 52 —
sufficient, would it not have been proper for the Su
preme Court to know the Executive Hercules by his
step, and humbly recognize, in what was before them,
the suspension of the liberties of the country ? But
no, no ! We are told the point of the case was neither
seen nor taken at the bar, and the unfortunate John
Marshall thus left to blunder as he might through the
mazes ofthe Constitution. Had the question of the Presi
dent's power been perceived by the lawyers, and argued
by those flaming ministers, the bench might have been
instructed, and known better, but, left as they were to
themselves, they supposed that Congress only could suspend
the writ, and the Chief Justice committed himself to the
declaration, that
" If 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 con-
" siderations, on which the legislature is to decide. Until the legis-
" lative will be expressed, this court can only see its duty, and must
" obey the laws. The motion, therefore, must be granted."
Now if, as must be agreed, all the Courts in the country
were once ofa raind on this question, and your Marshalls
and Taneys did but reflect, until the present Attorney
General rose above the horizon an universal light, this
obiter is better thau the most fortaal judgment, after the
profoundest argument of any disputed principle. Have
not more than seventy unbroken years, during which the
stream of judgment was not once ruffied with a doubt,
settled the question? What so like to be right as that on
which all the world is agreed ? If the question has not
been decided, because it was too plain .to pause upon,
the obiter is all we want. This point which is seventy-four
years old, and has never been passed on by a Court,' because
nobody had the face to ask a Court to listen to the argu
ment, is settled, and well settled ; and let me add, with the
most profound respect for the presence in which I stand,
that it is not in judicial power to unsettle it, if they would.

— 53 —
It is a great political question ; not a question of property.
It involves the freedom of every citizen ; no man who loves
liberty and disdains to be a slave could hold up his head, if
the Attorney General should prevail against us. When such
a principle is to be settled, judicial opinion may be the apex
of the cone, but its foundations must lie deep in the hearts
of the people.
Before things had come to their worst in 1807 the late
Chief Justice treated the question as one which never would
be made. In 1861, after things had come to their worst, it
was made, and the present Chief Justice decided it. If this
has been error, it has been coramon error, and it is too late
to correct it. It is belief and must be let alone. Nothing is
safe if this can be touched. The weight of authority has been
added to until it is overwhelming. We have it repeated to us,
in every way, coming from every department of our system,
and verified by a cloud of commentators. It is a point, on
which men were not merely unanimous, but on which until
this bad day, when Constitutional provisions are openly
derided if they come in confiict with the exigency of the
hour, to express a doubt would have shocked the public
mind, would have shocked the constituted authorities, would
have shocked the whole people of the United States.
Now if Wvejus vagum, be intolerable when it carries hither
and thither our titles to property, what shall be said of that
uncertainty which shakes our highest institutions? When
I trace back to 1774 our line of uninterrupted precedents
against this monstrous claim, I do Mr. Cook's case injustice;
the truth is that since the year 1669, when was passed the
habeas corpus act of 31 Charles 2, no Araerican until Mr.
Lincoln's day, could have dared to deprive a citizen of his
freedom, by suspending this writ. To bestow on the Ex
ecutive of a republic authority to declare at discretion a
condition of the country warranting him in suspending its
liberty, is to subscribe to that carricature of free government
so often drawn by^its enemies, when they make it vibrate

— 54 —
frora license to tyranny, and, tyranny to license. Strange
that this Court by the events of but yesterday, should find
itself compelled to demand an arguraent upon a power
which, till now, neither in England nor in America any
Executive has presumed to exercise since before 1688 !
It is literally true that the opposite arguraent carries
itself back to the day of the Stuarts. They said in England
then as the Attorney General has instructed the President
now, that the writ may be a very good writ, and is all very
well until it runs afoul of prerogative ; but that against
Executive arrests it is of no avail, that the king's name is a
iower of strength — that habeas corpus could not open the
3oors which had closed on a prisoner of the crown. I quote
from Hallam who is speaking of Charles I.
" The King next turned his mind, according to his own and his
"father's practice, to take vengeance on those who had been most active
"iri their opposition to bim. A few days after the dissolution, Sir
" John Eliot, Holies, Selden, Long, Strode, and other Pininent mem-
"bers of the commons, were committed, some to the Tower, some to
" the King's Bench, and their papers seized. Upon sueing for the
"habeas corpus, a return was made that they were detained for nota-
"ble contempts, and for stirring up sedition, alleged in a warrant un-
" der the king's sign manual. Their .counsel argued against the suffi-
" ciency of this return, as well on the principles and precedents employ-
" ed in the former case of Sir Thomas Darnel, and his colleagues, as
" on the late explicit confirmation of them in Petition of Eight The
" King's counsel endeavored, by evading the authority of that enact-
" ment, to setup anew that alarming pretence to a power of arbitrary im-
" prisonment, which the late parliament had meant to silence for ever.
" A petition in parliament," said the Attorney General Heath) " is
" no law, yet it is for the honor and dignity of the king to observe it
"faithfully; but it is the duty of the people not to stretch it beyond
" the words and intentions of the king. And no other constructions
"can be made of the petition, than that it is a confirmation of the
"ancient liberties and rights ofthe subjects. So that now the'case
"remains in the same quality and degree as it was before the petition.
" Thus, by dint of a sophism which turned into ridicule the whole
" proceedings of the late parliament, he pretended to recite afresh the
" authorities on which he had formerly relied, in order to prove that
" one committed by the command of tne king or privy council is not
" bailable. The judges, timid and servile, yet desirous to keep some

— 56 —
" measures with their own consciences, or looking forward to the wrath
"of future parliaments, wrote what Whitelock calls 'a humble and
" stout letter' to the king, that they were bound to bail the prisoners;
"but requested that be send his direction to do so."
Let me add in conclusion — and it may be worth a passiiig
thought — that, though the statute of 1669, and the revo
lution of 1688, changed the Constitution of England,
ihey could not change the hearts of politicians, spoiled by
indulgence in arbitrary power, and, the last of the unlucky
Stuarts, after being driven from the throne of his ancestors,
from the midst of his exile, said of the habeas corpus in his
advice to his son — what we will do well to remember as the
words of a narrow-rain d'ed tyrant — "That it was a great
" misfortune to the people as well as the country that the
" habeas corpus act had been passed as it obliged the gov-
" ernment to maintain a great force and enabled the turbulent
"to prosecute their evil designs."
That which protects liberty goes always more or less,
against the stomach of authority ; but to authority which is
unfortunate and already contemptible — whichis sick, weak,
cross, fretful and timid, the bright face of liberty and all
that belongs to it become absolutely hateful.

I come, now, to the second point, under the proclamation
of the 24th September to which the attention of counsel
has been directed by the first of the questions propounded
from the bench ; that of martial law.
There are here two questions. What is the extent of the
power claimed, and whence derived ?
,To the first question, the obvious answer is that martial
law naust needs be a suspension of our liberties both of
person and of property.
The second question is whether the power of proclaiming
and enforcing it, which is called, by those who support it,
the war-pbwer, is Constitutional.

-se
it is said to be in the Constitution of the United States,
and there I ara about to look for it.
In June, 1812, an aet of Congress was passed by which
war was " declared to exist between the United Kingdom
of Great Britain and Ireland and the dependencies thereof
and the United States of America and their territories,"
and the President was " authorized to use the whole land
and naval force of the United Statea to carry the same into
eff"ect," and thus the Executive of that day was invested
with the war power. To him was given the control ofthe
source from which flows by some channel or other the whole
of that authority, be it less or greater, with which Mr. Lin
coln is now invested. War was declared and the President
authorized to use the land and naval force of the country
to conduct it. When Congress passed this act they gave to
the President, who is Commander-in-Chief of their forces, an
enemy against whom to direct military operations of defence
and attack. They need not have declared the war — they
could have remained at peace. They had hesitated, ever
since hostilities began between France and England in 1793,
and might have made their war long before ; but Congress
chose to wait eighteen years. In all this time, the President
could not stir, be had no Constitutional right to order a
single gun fired on an enemy who was plundering our ves
sels, impressing our seamen and insulting us with every
variety of injury and affront, uuder cover of a maritime law
that was intelligible nowhere but in the English admiralty.
In short, this war power, which, as early as under the
Presidency of Washington, he had desired to procure au
thority to exercise for our redress, being lodged in the Leg
islature, and not in the Executive, he had not au atom of,
till a law was passed by Congress. Not till then could he
move. Thus through Congress it was that Mr. Madison
came by his war power, and that Washington had to go
without it. ,
Now, how came Mr. Lincoln by it? Congress alone

¦57-

could raise and support the armies, provide and maintain the
navy, with which the war was to be carried on ; or lay and
collect the taxes and borrow the money which should pay for
this expensive medicine. Until Congress gave the word, Mr.
Madison was an admiral commanding

¦ a painted ship

" Upon a painted ocean."
And. his army was as painted as his ship. As by the llth •
of the powers of Congress set forth in the 8th Section of
the 1st Article of the Constitution, they are authorized
"to declare war," so, by the 15th ofthe sarae powers, they
are authorized " To provide for calling forth the militia to
" execute the laws of the Union, suppress insurrections,
" and repel invasions," and as by the act of the 18th June,
1812, the Congress declared war, and the President was
authorized to use the land and naval forces to carry it on, so
an act of the 28th February, '95, called " an act to provide
" for calling forth the militia, to execute the laws of the
"Union, suppress issurrections and repel invasions, and to
"repeal the act now in force for those purposes," declared
that "whenever the laws of the United States shall be
"opposed, or the Executive thereof obstructed in any
" State by combinations too powerful to be suppressed
" by the ordinary course of judicial proceedings, or by the
"powers vested in the marshals by this act, it shall be law-
" ful for the President of the United States to call forth the
" militia of such state, or of any other state or states, as may
" be necessary to suppress such combinations, and to cause
"the laws to be duly executed." In this act, and one
supplementary to it, passed the 3d March, 1807, authorizing
the Executive in cases of insurrections or obstruction to the
law, to employ also, the regular land and naval forces of the
United States, lie the war powers,, with which Mr. Lincoln
found himself invested, when first he exercised them. Con
gress, which gaVe Mr. Madison his war power in 1812, gave

— 58 —
in 1795 the war power which Mr. Lincoln began to use in
April, 1861. It was as yet less thau the power which Mr.
Madison had.
What more is it now? On the 15th April, 1861, im
mediately after the fall of Fort Sumter, he issued his
proclamation that the laws of the United States were op
posed in certain States, by "combinations, too powerful
"to be suppressed by the ordinary course of judicial
" proceedings, or by the powers vested in the marshals by
"law." By the sarae proclaraation he convened Congress
for the ensuing 4th July, having already exhausted his
lawful authority in using the navy and regular array, as
then existing, and the militia of the States, as provided by
the acts of 1795 and 1807. These powers authorized hira
to call for militia, and move thera and the regular forces
against the combinations; but wanting more, he had to
resort to the Legislature.
By tbe Congress which raet in special session the 4th
July, and in regular session the December following, he was
armed with further powers. What were they ? Congress,
which has the power "to declare war," "raise and support
"armies," and "provide for calling forth the militia to
"execute the laws ofthe Union, suppress insurrections and
" repel invasions," has also the power " to regulate coramerce
"with foreign nations, and among the several states." Ac
cordingly,' by statute of the 13th July, 1861, entitled "An
Act to provide for the collection of duties on imports and
for other purposes," tney increased the war power of the
President by authorizing him to collect duties, in the ports
of seceded states, on the decks of vessels of war ; to close
some of their ports, cut off their commercial relations, and
forfeit vessels and property in vessels attempted to be car
ried contrary to the authority to be used by the President
under this act. This was the first' step taken by Congress
after their meeting to strengthen the hands ofthe President.
On the 29th of the same month an act was. passed chang-

— 59 —
ing in several particulars that of 1795. It made railitary
punishraents more severe, and enabled the President to retain
the militia called into the service of the Uuited States, until
he should discharge them by proclaraation, provided it
should not be longer than sixty days after the opening of
the next regular session of Congress, unless they should
otherwise by law provide. On the 6th of August an act
was passed, making it "the duty of the President of the
United States" to cause "to be seized, confiscated and con
deraned" all property which shall be purchased or acquired,
sold or given with intent to be employed or used in aiding,
abetting or promoting the insurrection, and freeing slaves
in arras or eraployed in any work or labor against the
United States.
The next act of Congress, also ofthe 6th August, 1861 — to
fortify the Executive ¦with an indemnity — serves, in a degree
to mark the Constitutional limits of the powers of both.
Between the proclamation of the 15th of April, cal Hug for
75,000 militia, and ordering a special session of Congress,
and the 4th of July, when they met, events had rushed on;
and they were met by a proclamation ofthe President, dated
the 19th of April, declaring the blockade of the ports of the
then seceded States ; also another of the 27th of April, de
claring the blockade of the ports of Virginia and North Car
olina, which had now seceded, and still another of the
3d May, calling for 42,034 volunteers to serve three years,
increasing the regular army 22,714 men, and adding to
the navy 18,000 seamen. "The call for volunteers," the
President says, " hereby made, and the direction for the
increase ofthe regular army, and for the enlistment of sea
men, hereby given, together with the plan of organization
adopted for the volunteers and forthe regular forces, hereby
authorized, will be submitted to Congress as soon as assem
bled." And finally came the proclamation , of the 10th of
May, directing the commander of the United States forces
at certain places on the Florida coast, " to permit no person
6

— 60 —
to exercise any office or authoritj' inconsistent with the laws
and Constitution of the United States," and authorizing him
"tosuspendtherethewritof Aa6mscor7?z<5and to removefrom
the vicinity of the United States fortresses, all dangerous
and suspected persons." Of the powers exercised uuder
these several proclaraations I do not stop, f )r it is unneces
sary, to inquire how much might bethought Qon stitutional.
But we shall see' that the President, at that day, hira
self supposed that his'war power had a lirait. In the raes
sage to Congress of the 4th of July, at the opening of the
special session, he saya :
" Recurring to the action of the Government, it may be stated, that,
" a call' was made for seventy-five thousand militia; and rapidly fol-
" lowing this, a proclamation was issued for closing the ports of the
" insurrectionary districts by proceedings in the nature of Blockade.
" So far all was believed to be strictly legal. At this point the insur-
" rectionists announced their purpose to enter upon the practice of
" privateering. Other calls were made for volunteers to serve three
" years, unless sooner discharged, and also for large additions to the
" regular army and navy. These measures, whether strictly legal ov
" not, were ventured jipon, under what appeared to be a popular de-
" mand, and a public necessity ; trusting then, as now, that Congress
" would readily ratify them. It is believed that nothing has been
" done beyond the Constitutional competency of Congress."
I make two reraarks here. One, that we have from the
President the admission of his incompetency to carry on the
war alone, even wheu such backers as " popular deraand"
and "public necessity" were thought to support him; the
other, that it does not follow when the I'resident resorts to
measures to which he is Constitutionally incompetent, but
within the " Constitutional competency of Congress," that
Congress can indemnify him. It does not follow that the '
indemnity which Mr. Lincoln here sought and Congress
undertook to give by the act of the 6th of August, 1801, is
Constitutionally available.
When Parliament passes an act to indemnify ministers,
who, Parliament not being in session, resort to act of vigor
beyond the Constitution, their indemnity is perfect, because

—61 —
the power of Parliament is unlimited; not so with the
President and Congress, whose power is bounded by a
written Constitution. There is in Congress uo power to
afford the President inderanity for violating it. They could
not transfer to the Executive their povrer " to raise and
support arraies," nor could they indemnify, though they
might forbear to punish hira, for assuming it. They could
not tie their hands against the Constitution, and the day
after passing this act they could have impeached the Presi
dent, and degraded him from office. The bill of indemnity
was as unconstitutional as the President's raising an armed
force without the consent of Congress. I do not say it was
not necessary to raise them, and what his real indemnity is,
and ought to be, is a point to which I will come presently.
It may also have been proper for Congress to give his meas
ures and proclamations their approbation, but they had no
right to enact that they were " legalized and made valid
" to the same. intent, and with the same effect as if they had
"been issued and done under the previous expressed
"authority and direction of the Congress of the United
"States." That was their enactment, and itwas beyond
their line of authority.
Of the next act, that of the 31st of January, 1862, and the
supplement of the llth of July, of the same year, by which,
the President, when he shall deem the public safety requires
it, is authorized to take possession of the Northern telegraph
lines and railroads, "with all their appendages and appur
tenances, so that they shall be considered as a part and
parcel of the military establishraent of the United States,"
it is not necessary to debate the Constitutionality for any
purpose of the present arguraent. It may however be
safely said that the power of Congress to seize the property ,
held, and supposed to be protected, by the charters of
the several States which incorporated these railroads and
telegraph companies, is equal to and not greater than their
power to seize the cash and assets with "the appendages

— 62 —
and appurtenances" of the various banking institutions
doing business under, and supposed to be protected by
charters ofthe same States.
On the 17th of July, 1862, was passed an "act to suppress
insurrection, to punish treason and rebellion, to seize and
confiscate the property of rebels, and for other purposes."
By this statute which, unlike those relating to telegraph
and railroad lines, is directed at the population of the
Southern States, the President ia authorized to cauae the
seizure and apply its proceeds to the' support of the army
of the United States, of all the property of certain enu
merated individuals ; that is to say of officers of the array
and navy of the States in arras against the Government —
the President, Vice President, Members of Congress, Judges
and other functionaries of the "so called Confederated
States of America," whether " national, state or municipal,"
and fiirther, of " any person who, owning property in any
State or Territory of the United States, or in the District of
" Columbia, shall hereafter assist and give aid and comfort
"to such rebellion;" and provisionis made forthe con
demnation, in any District Court of the United States, of all
such property, after its seizure, "so that it may be made availa
ble for the purpose aforesaid," "whether real or personal."
These are the acts of Congress, unless in the mass of
statutes passed since the 4th of July, 1861, something has
escaped me, which give to the President all the war power
he has under the Constitution. Do we find in them the
, power to enforce this proclamation ? The President cannot
make war, he cannot put down insurrection or repel inva
sion, he has no means of opposing "combinations too
"powerful to be suppressed by the ordinary course of ju-
" dicial proceedings," he could not, with the army and navy
under his hand, employ them Constitutionally against a
foreign enemy or traitor at home without an act of Congress.
I will presently inquire what extent of war power Congress
eould invest him with, were they disposed to go all lengths.

— 63 —
All I now say is that here is Congress supplying him from
day to day with whatever it is he has of it, and that if they
took their hands frora under hira, he and his war power
would come down together — they would vanish like a
dream. The President cannot in war or peace lay his hands on a
citizen, or the property of a citizen, without an act of Con
gress. An act of Congress containing a declaration of war
by Congress it is which enables him to use the land and
naval forces against a foreign nation. An act of Congress
enables him to use them against insurrection at home.
From 1789, when the Government was organized, till 1807,
when the act passed authorizing his applying the navy
and regular forces to such object, it would have been im
peachable to use any other arm than that of the militia
of the States,. Without the act of 1795; he could not have
called for the militia. When the administration called
for 75,000 militia-men after the fall of Fort Sumter, to
march against the insurgents, it was by virtue of an act of
Congress ; and when in the midst of the emergency in
which the Executive found themselves, they went further,
the proclamation of the President admitted the absence of
authority, admitted he was acting at his peril.
Without an act of Congress there is no army, no na'vy no
war power- Whether the force is great or small — whether _
6000 meu, as not long since, make the army, or 50.0,000 aa
now; whether they are to be used against Europe or
America, depends on Congress. Before the war of 1812
brought a naval force into favor, our need of a navy at all
was a party question; It is as much in the sound discre
tion of Congress to raise or not an armed force, and when
raised to use it, as it is in their discretion to increase or
diminish the judicial force — as it is to establish this or that
post-road, and when established to repair it or let it go un
repaired. Strange despotism, this of the President, which
,is given by Congress not till they please, taken from him

— 64—
by Congress as soon as they please, and which while it
lasts depends from hour to hour on the pleasure of Congress
for its support! If the gentleman would give Constitutional
substance to what is now his shadow of arbitrary rule he
must go on and satisfy the Court that co-ordinate branches
of the Government are as liable as individual citizens are
to the proclamation and enforcement by the Executive
of martial law — that acts of Congress raay be "disloyal
" practices," if theydiscourage volunteer enlist ments" or" mi-
" litia drafts" — that the Senate and House of Representa
tives not being "adequately restrained by the ordinary
"processes of law," may be confined "in any fort, camp,
"arsenal, military prison or other place," at the will of the
Executive. His war power not to be ridiculous must
be self-sustaining, and not dependent upon some other
power. The President has no implied or traditionary function.
The law binds him as much as my client here. There is
in that particular, no diff'erence between thera, except that
while Mr. Cook can be punished once only, Mr. Lincoln
may be twice punishtd for the same off"ence, once by tho
Senate, and again by the courts of justice. He ouly com
mands the forces,— his power is over the army what that
of a colonel is over his regiraent. He is as much bound
by the Constitution as he was before the war broke out ;
he is no more emancipated fiora its obligations than any
corporal who serves under hira. He is " Coraraander-in-
Chief of the array and navy of the United States, and of the
militia of the several States when called into the actual ser
vice of the United States." He can direct their operations
either in his own person, or by his officers. He maj' go to
sea in comraand of the fleet, or fight at the head of the
troops, but where do we find that he coraraands more than
the sailors and soldiers ; that he becomes arbiter of the life
and liberty of the citizen ?
Soon after the organization of the Government, an

— 65 —
opportunity oftered to exhibit the jealousy of the men of
that day of the exclusiveness of Legislative power over the
question of war and peace. When Europe went into a
war, at the end ofthe last century, which threatened to in
volve us in its flames, Washington published in 1793 his
famous proclamation of neutrality, by which, in a few lines,
after saying that Austria, Prussia, England, Sweden and the
Netherlands were at war with France, he declared it to be
" the disposition of the United States, to preserve a con-
"duct friendly and impartial towards the belligerent pow-
" ers," — that he therefore warned our citizens "to avoid.
all acts and proceedings whatsoever, which might in any
way tend to contravene such disposition," andmade known
that those who ¦violated our neutrality would receive no
protection from the Government; that instructions had
been given to the proper officers " to cause prosecutions to
be instituted against all persons who shall, within the cog
nizance of the United States courts, violate the law of neu
trality with respect to the powers at war, or any of them."
These were the terms of a State paper, which, in its day,
gave so much offence to so many American citizens, which
was assailed by Madison, defended by Hamilton, and
di'Tided the country. It was insisted that the President, in
issuing it, fell short of our treaty with France, and passed
the bounds of his Constitutional power ; and this being
denied by the friends of the administration, became a great
party issue.
Our ancestors were nice, they snuffed heresy in the
tainted air — or thought they did. They said, tru^ the
Executive may direct a prosecution, but what is this claim
to interpret a treaty, when the point is war or peace ?
I refer to this precedent, so well known in our history,
because it goes to show that in the earlier days of the Re
public, when those who best understood the Constitution
were still li^ving, the most virtuous and greatest man we have
produced, o,r ever shall, was cried out at by half the country

— 66 —
for no raore than proclaiming Executive views on a point
that must eventually depend on the fiat ofthe Legislature.
There is in the Constitution to countenance the proclaraa
tion, no power for the President but that which he derives
as " Commander-in-chief of the army and navy of the United
" States and of the militia of the several States when called
"into the actual service of the United States." He com
mands the army and fleet with the same proportional war
power, and no more than is entrusted to the commander of
a brigade or a frigate. All else is in Congress; and to this
tirae their legislation has not authorized (if it could) martial
law. Whether stronger than the Constitution, stronger
than Congress, stronger than any institutions, war, like-
some subtle and powerful essence which alters and governs
all it mixes with, converts, upon the instant, liberty into
despotism, and a free people into slaves, is a further ques
tion which I will notice before I take my seat.
In the meantirae, disraissing the point of the President's
power, under the laws, as they stand, I corae to the ques
tion not material to Mr. Cook, more than to the rest ofthe
community, whether Congress is constitutionally capable to
arm Mr. Lincoln, were they so inclined, with the right to
issue and act upon this proclamation.
Our governraent is a government of limited powers ; but
more than that, what is not expressed is denied to it.
Whence could Congress derive the right, to uproot the
liberties of the citizen ? What more could they do without
suspending the habeas corpiis, to make ready the President
for hostilities, than pass the acts which I have cited ? The
Government of Rhode Island, which, like that of England,
had unlimited powers till 1842, declared martial law, and
the Supreme Court of the United States held their act to
be valid. They might, but for the 4th section of the 4th.
article of the Federal Constitution, have declared them
selves an hereditary monarchy, and the declaration of mar
tial law, being for a temporary object, was ruled not to

— 67 —
gainsay the guaranty to each State of a republican form of
government. But the Constitution of the United States is an existing
fact which seems to preclude the existence at the same tirae
of martial law. Can the two facts co-exist ? Can there be
a government of limited powers, with checks and balance?
adjusted to the enjoyment by the people of the greates
amount of freedom, consistently with, at the same time, ii
the same country, and for the same people, occasional
tyranny ?
To divide the powers of a State among an Executive,
Legislative and Judiciary, limiting the power of each, and
reserving to the people and the several comraunities to
which they belong, all powers not expressly granted, and
then to add to this raachinery of freedora arrangements for
the Constitutional production of arbitrary violence, at
periods recurring so frequently as to return at every suc-
¦cessive insurrection or invasion which fell upon the coun
try, must be a strange sj^stem. It would be a folly such as
no law-givers ever yet comraitted. What is the meaning
of saying that the Constitution, and the laws made in pur
suance thereof, shall be the supreme law of the land, if at
short intervals, the Constitution is to be suspended, the
laws turned out of doors, and the whole thing resolved into
the simplest form of despotism ?
Laws and rules may be liable to exception, but what if
they defy and contradict themselves ? Surely nothing
could have been further from the thoughts of those who,
though they did not plant our liberties, professed to pro
vide for their protection and growth, than a Constitutional
provision for their overthrow !
But let those who doubt come closer. What is the
Federal Legislature? The Constitution in establishing the
Executive, declares that " the Executive power shall be
vested in a President of the United States of America."
But not so with the Legislature. In the Legislative
7

— 68 —
article, after declaring that "all legislative powers herein
"granted shall be vested in a Congress of the United
"States," the Constitution proceeds to enumerate them.
"The Congress shall have power:" 1. To lay and
collect taxes. 2. To borrow money — and so on with the
eighteen powers of the Legislative body. And these —
all tha powers it possesses — are defined and set forth.
The Executive executes the laws; the power of the
President is not capable of being described in detail, as is
the law making power which is defined by grants and re
strictions. There is no power given to Congress which is
not expressly given.
When the Convention met to frame a Constitution, it
was the inclination of the majority of them, and the deter
mination of their constituents, that the great powers of
government should be given to the Legislative branch.
The power they were to part with must be lodged some
where, and the purpose was to place it with the Legislative
body as the part of our system most immediately within
reach of the people, and which consisting, unlike the Ex
ecutive, of a nuraber of individuals, it was supposed might
be, if not the furthest from temptation to tyranny, at least
not so anxious to seize a prize which must be divided
among many. This was the opinion of the country, the
wisdom of it, is' not the question, nor yet the wisdom of
giving away, under any circumstances, so much of their
power as the States yielded in 1788. Were it to do again
we would perhaps give less.
But the fact is certain that those rights which it was most
dangerous to part with, were given to Congress. Men who
differed on everything else, agreed on this. Mr. Jefferson
wrote after the adoption of the Constitution " The tyranny
" of the Legislature is the most formidable dread at present,
"and will be for raany years," and Mr. Gouverneur Morris
writing in the same tone, called Congress the "Legislative

— 69 —
''lion." Hence, the extreme pains to state and circum
scribe the powers of Congress. There was the power, not
in the Executive.
The Executive shall command the forces, grant reprieves
and pardons, with the aid of one branch ofthe Legislature
appoint to place and make treaties, receive ambassadors,
convene Congress on extraordinary occasions, and, after
they are made, " take care that the laws be faithfully executed,"
When Congress pass a Constitutional law, he is to see it
Constitutionally executed.
Now, if martial law be Constitutio nal j let the power of Con
gress be shown authorizing the establishment of it. The
Legislature of Rhode Island could enact in 1842 the tem
porary extinguishment of republican governraent, but the
Legislature ofthe United States cannot. To be able to do
so, the right must appear written down among the powers of
Congress, but it does not appear, nor anything resembling
or approaching it, or to which, accessorially or incidentally,
such a power could possibly adhere. There is nothing
among them to warrant the Legislature in oversetting the
institutions of the country, either permanently, or as they
did in Rhode Island, temporarily.
The war power is given to be exercised Constitutionally,
and that raeans consistently with the Constitution, and con
sistently with the other powers and provisions contained in
the Constitution. Congress, in carrying on war, must at
the same time, carry on the Constitution. They would carry
it on in defiance of the Constitution, if setting at naught
the first section of the third article, which declares that the
judicial powers of the United States shall be vested in
certain courts, they authorized the President to order a
military tribunal to try Mr. Cook. In defining and punish*
ing "piracies and felonies comraitted on the high seas and
" offences against the law of nations," they cannot set at '
naujght the third clause of the ninth section of the first

— 70 —
article, which directs that " no bill of attainder or ex post
"facto law shall be passed." They could not, after the act
of piracy had been committed, pass a law increasing the
penalty of the offence. They coald not take the oft"ender'8
case into their own hands, and pass a bill of attainder
against him. One clause of the Constitution cannot be vio
lated the better to carry out sorae other. The powers,
provisions and restrictions contained in it must work to
gether, or not at all.
No Araerican statesman or jurist was heard to say, before
Mr. Lincoln's tirae, that it was Constitutional to sacrifice
one power or restriction to another power or restriction, on
pretence that they were inconsistent; or thart it was conve
nient or expedient to drop one of thera. It has been, on
the contrary, the test of the unsoundness of interpretation
put upon a clause of that paper, that, were it adopted, some
other clause would not have its operation. There is not a
power of the eighteen conferred on Congress, to which the
same reasoning does not apply, and it may truly be said of
each of thera, that if applied without regard to the other
seventeen, our institutions would become positively ridicu
lous. Such a reading of the instrument would be worthy
of the civilization of one of those African tribes to which
Mr. Lincoln would like to send ambassadors, where the
statesmanship of the chief is equal to the grasp of but one
idea at a time. To-day the Constitution would be racked
to coin raoney, to-raorrow to raake war, the next day to
promote the progress of the useful arts, and so from power
to power to the end of the chapter of absurdities ! It would
not be easy to overstate the grossness of the position that
the war power eats up all the rest according io the Constitu
tion — that such a rule is found in the Constitution,
But the war power is moreover, abhorrent to the whole
spirit and object of the Constitution, which was intended to
secure liberty. It was to secure liberty, for it only secured
and did not give it. We had it already. We never were

— 71 —
slaves. We met iu 1787, as freemen, to form a free Con
stitution, and consented to part with a portion of our free
dora for the sake of the rest.
We agreed to limit ourselves to the extent there laid
down. Hence we look into the Constitution for what the
citizen may not do, not for what he may do. He is free to
everything in which hs is not there bound, and the Govern
ment is free to nothing but that to which they are there
licensed. It was not put down in the Constitution that we
shall not be sold into bondage, or shut up in a "fort, camp,
" arsenal, military prison or other place of confinement by
"any military authority." There needed no Constitution
to assure us of that. Such filth was out of the question.
They can do at Washington exactly what is written down
in the book, and no more. Everything else is unconstitu
tional, not merely because, unlike governments generally,
they are liraited by State power and the words of their
charter, but because, in a free country, everything must
conform to freedom, Liberty, and not the war power is the
assirailator. The doctrine, which has made its way in more
than one country of Europe, that power springs from the
people, and which here is indigenous, could not hold, any
where were it not well understood that to make a measure
unla'wful it is enough to show it is contrary to the genius
and spirit of their institutions. Nearly fifty years ago — and
the world has made great progress since then — when Louis
XVIII came back the first time, his subjects were disgusted
beyond measure because the charter, though quite a liberal
one, was octroy^ — itwas power given by the sovereign. Does
Mr. Lincoln, who supposes the union preceded the States,
suppose that the power which the people have was a gift ?
They have no provision in England against martial law,
nothing in Magna Charta, nothing in the Bill of Rights;
its inhibition is not to be found any more in the English
Constitution than that of the United States ; but what
minister of the crown would so far trifle with his head a»

— 72 —
to make that a reason for issuing such a proclamation as
this ? The history of that country — an oligarchy to which
we have so often to turn of late, to look for our liberties —
shows, to the dullest perception, that martial law proclaimed
by |he Executive would cost the first Lord of the Treasury
his life, and drive the King into exile. They manifest the
extremest jealousy of any appearance of military interposi
tion iu civil aft"air8, and the utraost boldness in denouncing
it. Military doraination would not be tolerated for a mo
ment — even its trappings offend them.
When after the successes of 1815, a period at which the
military may be supposed to have been at the height of
favor, some show was made of guarding certain parts of
the streets of London with thera, on special occasions, it
was fiercely attacked in Parliaraent, accorapanied with bit
ter sneers at the Prince Regent, " who in imitation of the
pomp of foreign sovereigns would wish to live surrounded
by military guards."
When, after the great riots of 1780, which, the police
being unable to cope with, the soldiers had been called in
to quell, the same sort of inclination appeared, to put them
in the place of the civil police, the people formed associa
tions, purchased arms and taught themselves the use of
them, in order should the disturbances be renewed, to be
able to dispense with the military arra. Indignation meet
ings were held, and the county of Huntingdon expressed
theirs in a resolution, "That it be recoramended to every
" housekeeper to have proper arras, such as musket and
" bayonet, and to be ready and expert in the use of them ;
" to be prepared against all ernergencies that may arise from any
" attack of our many surrounding enemies, or any invasion of
" our rights and liberties." Let men who would cower be
fore Mr. Lincoln draw encouragement from those who
resisted George the Third !
But there is American authority to which I now turn of

— 73 —
the most persuasive kind, to the point that, such is the
structure of the Constitution of the United States ; such
the foundation on which it rests, that it is out of the ques
tion to seek in it any thing which is inconsistent with the
most absolutely free institutions. Exactly this doctrine,
by those who best understood the Constitution, was strongly
urged when it was before the country for ratification and
adoption. When the " plan "• came from the Convention to the
States, it was objected to as not containing a Bill of Rights,
such as that, for example, appended to the Constitution of
the State of Massachusetts, of that day, which, in thirty
items of the most comprehensive character, lays down that
unreasonable searches and seizures of men's persons, houses,
and papers, shall not be allowed, that the liberty of the
press is not to be restrained, that the power of suspending
the laws can be exercised only by the Legislature or under
their direction — and other elemental positions.
But the framers of the Constitution of the United States
thought these precautions unnecessary, they did not put
into it a clause to forbid muzzling the press, another to
forbid arbitrary arrests. They deemed it sufficient to
establish only institutions which were liberal, and free.
They did not provide against martial law, for in their work
they did not suppose, their fellow citizens would look for
it. And in this way it is that in the Federalist No. 84,
Hamilton answers the objection to the Constitution that it
contained no caveat against tyranny. " Bills of Rights," he
says, " Are, in their origin, stipulations between kings and their subjects, abridg-
" ments of prerogative in favor of privilege, reservations of rights not surren-
" dered to the prince. Such was Magna Charta, obtained by the barons, sword
<| in hand, from king John. Such were the subsequent confirmations of that
"charter by succeeding princes. Such was the petition of right assented to
"by Charles the First, in the beginning of his reign. Such also, was the
"declaration of right presented by the lords and commons to the prince of
" Orange, in 1688, and afterwards thrown into the form of an act of parliament.

— 74 —
"called the bill of rights. It ia evident, therefore, that according to their
"primitive aignification, they have no application to conatitutions profeasedly
"founded upon the power of the people, and executed by their immediate
"representatives and servants. Here, in strictness, the people surrender
"nothing; and as thej retain everything, they have no need of particular
"reservations. "We, the people ofthe United States, to secure the blessings
"of liberty to ourselves and our posterily, do ordain and esfahliih this Con-
" stitution for the United States of America;" this is a betler recognition of
" popular righis, than volumes of those aphorisms, which make the principal
" flgure in several of our state bills of rights, and which would sound much
"better in a treatise of ethics, than in a constitution of government."
How small a thing was the desire with which Hamilton
and other men of his day were charged, of accumulating too
much power in the hands ofthe Federal Government, when>
it coraes to compare with the mighty ambition of those
who now administer it ! " Here, in strictness, the people
surrender nothing, and as they retain everything they have
no need of particular reservations I" "We, the people,"
"do ordain and establish this Constitution," — "this is a
better recognition of popular rights than volumes of these
aphorisms which figure in Bills of Rights!"
We have next a great truth too often denied and which
told by Hamilton ought to have its utmost force. "But,"
he proceeds,
" A minute detail of particular rights, ia certainly far leaa applicable to
" a Constitution like that under consideration, which is merely intended to
" regulate the general political interests of the nation, than to one which has
" the regulation of every species of personal and private concerns."
" I go further," he says,
" And afiarm, that bills of rights, in the sense and to the extent
" they are contended for, are not only unnecessary in the proposed con-
" stitution, but would even be dangerous. They would contain various exoep-
" tions to powers not granted; and on this very account, would afford a col-
" orable pretext to claim more than were granted. For why declare that, thinga
" shall not be done which there is no power to do ?
" Why, for instance, should ic be said, that the liberty of the press shall net
" be restrained, when no power is given bywhich restrictions maybe im-
" posed ? I will not contend that such a provision would confer a regulating
"power ; but it is evident that it would furnish to men disposed to usurp a
" plausible pretence for claiming that power. They might urge with a sem-
" blance of reason, that the constitution ought not to be charged with the ab-
" surdity of providing against the abuse of an authority, which was not given.

— 75 —
" and that the provision against restraining the liberty of the press afforded a
" clear implication, that a right to prescribe proper regulations concerning it,
" was intended to be vested in the national government. This may serve as a
" specimen of the numerous handles which would be given to the doctrine of
" constructive powers, by tho indulgence of an injudicious zeal for bills of
" rights." The writer after some more remarks on the liberty of the
press thus concludes:
" There remains but one other view of this matter to conclude the point.
" The truth is, after all the declamation we have heard, that the Constitution
"is Itself, in every rational sense, and to every useful purpose, a Bill of
" Rights. The several bills of rights in Great Britain, form its constitution,
" and conversely the constitution of each State is its bill of rights. In Uke
" manner the proposed constitution, if adopted will be the'bill of rights of the
" Union. Is it one object of a bill of rights to declare and specify thepoliti-
" cal privileges of the citizens in the structure and administration of the gov-
" ernment ?
"This is done in the most ample and precise manner iu the plan of the
" convention ; comprehending various precautions for the public security,
" which are not to be found in any of the State constitutions. Is another ob-
"ject of a bill of rights to define certain immunities and mod. s of proceed-
" ing, which are relative to personal and private' concerns ?
" This we have seen has also been atteuded to in a variety of cases, in the
" same plan. Adverting, therefore, to the substantial meaning of a bill of
"rights, it is absurd to allege, that it is not to be found in the work of the
"convention. It may be said that it does not go far enough, though it will
" not be easy to make this appear ; but it can wilh no propriety be contended
" that there is no auch thing. It certainly must be immaterial what mode is
" observed as to the oruer of declaring the rights of the citizens, if they are
" provided for, in any part of the instrument which establishes the govern-
" ment ; whence it must be apparent, that much of what has been said on this
" subject rests merely cn verbal aud nominal distinctiona, entirely foreign to
" the substance of the thing."
It would be vain to endeavor to add strength to this.
I leave the argument in the hands of Mr. Hamilton, that a
military tyranny is not to be found in the Constitution of the
United States.
But after the publication of the Federalist, and after the
Constitution had been adopted, as it stood, in compliance with
the expressed wishes of the conventions of certain of the States,
the first Congress, by resolution of September, 1789, pro
posed to the States, and they ratified them, the amendments,
ten in number, to which reference has already been made, and
these amendments provide for the absence from the Constitution
of a Bill of Rights. They are :

—76 —
" Article 1. — Congress shtill make no law respecting an establishment of
"religion, or prohibiting the free exercise thereof; or abridging the freedom
" of speech, or of the press ; or the right of the people peaceably to assemble,
" and to petition the government for a redress of grievances.
" Article '1. — A well regulated militia being necessary to the security of a
" free State, the right of the people to keep and bear arms shall not be in-
" fringed. "Article 3. — No soldier, shall in time of peace, be quartered in any house
" without the consent of the owner ; nor in time of war, but in a manner to be
" prescribed by law.
" Article 4. — The right of the people to be secure in their persons, houses,
"papers, and eifects, against unreasonable searches and seizures, shall not be
"violated; and no warrant shall issue but upon probable cause, supported
" by oath or aflirmation, and particularly describing the place to be searched,
" and the person or things to be seized.
"Article o. — No person ahall be held to answer for a capital or
" otherwise infamous crime, unless on a presentment or indictment of a
" grand jury, except in cases arising in the land or naval forces, or in
" the militia when in actual service in time of war or public danger ; nor
'¦ shall any person be siibject for the same offence to be put twice in jeopardy
" of life or limb ; nor shall be compelled, in any criminal case, to be 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.
"Article 6. — In all criminal prosecutions the accused shall enjoy the right
" to a speedy and public trial, by an impartial jury tf the 8tate and district
"wherein the crime shall have been committed, which district shall have been
'¦ previously ascertained by lawJ and to be informed of the nature and cause
" of the accusation ; to be confronted with the witnesses against him ; to bftve
" compulsory process for obtaining witnesses in his favor ; and to have the
" assistance of counsel for his defence.
"Article 7. — In suits at common law, where the value in controversy shall
"exceed twenty dollars, the rightof trial byjury shall be preserved; and no fact
" tried by jury shall be" otherwise re-examined in any court of the United
" States thau according to the rules of the common law.
"Article 8. — Excessive bail shall not be required, nor excessive fines im-
" posed, nor cruel and unusual punishments inflicted.
"Article 9. — The enumeration in the Constitution of certain rights, shall
"not be construed to deny or disparage others retained by the people.
"Article la.— The powers not delegated to the United Slates by the Con-
" stitution, nor prohibited by it to the States, are reserved to the States
"respectively or to the people." '
The States were jealous, their people sceptical, they said
that, some day, by the door of implication, Federal tyranny
would enter, and they demanded and obtained this Bill of Rights.
It is stipulated that the rights not expressly granted to the cen
tral government, nor prohibited to the States, are reserved to
the States or the people, and that the enumeration in the Consti
tution of certain rights be not construed to disparage those re
tained by the people. Thus the door seemed to be barred. If the

— 77 —
Federal Government had only the powers which expressly were
granted, and the States and the people had , all the rest, how
could they be oppressed ? There was nothing granted which
could be converted to oppression. But au instinct, an
undefined apprehension of what was to come in 1861, did not
let them stop here. They went on, and, by eight of the ten
amendments, provided nominatim against abuses. They have
been violated, almost every one of them, in the last sixteen
months ! The freedom of speech, and of the press, the right of
the people to be secure in their persons against unreasonable
seizures, and unless by warrant issuing on probable cause, sup
ported by oath, the provision that the citizen shall be held to
answer for infamous crimes only on presentment of a grand
jury, shall not be twice put in jeopardy of life for the same of
fence, that he shall enjoy the right to a speedy and public trial
by an impartial jury of the State or district where the crime
shall have been committed, that he shall be informed of the na
ture and cause of the accusation against him, that he shall be
confronted with the witnesses against him, shall have com
pulsory process to bring forward his own witnesses, and the as
sistance of counsel in making his defence — where are they ?
WHISTLED AWAY BY ORDERS AND PROCLAMA
TIONS!
It remains only to examine the last position taken in jus-
tiffcation of these measures to which authority has ventured
to resort, I mean the ground of Necessity, — a necessity
to use the war power created by insurrection and invasion,
which demand, they say, the application of it. They say,
necessity knows no law, nor Constitution either, and that
abiding by the Constitution and law the republic must be
lost, and may be saved by disregarding them. That the
safety of the republic is the Supreme Law, and higher than
the Constitution, and, for those who are in authority, it is a
first duty to the State to save it from destruction. That to
allow a man to walk abroad who is conspiring against the
Government, at an exigency like this, is absurd. And, above

— 78—
all, they insist, on the necessity, that nothing shall interfere
with military operations.
What ! they say, must the Colonel chaffer with the hus
bandman for the use of a field on which to encamp his
regiment ? Shall he let his troops and cattle starve while
he cheapens their food? And, shall the President, who
commands all the regiments, forbear to seize the whole
substance of the State, if necessary, to apply to the support
of those, without whose upholding arm, everything must
come tumbling over our heads ? If the country is invaded,
can it be defended bythe rules of law, if insurgent can it be
put down by them ? Do not tell us, they say, of the Con-'
stitution and law till the enemy is expelled, till the Rebels
are cut off; should they prevail, your institutions which we
offer to intMere with, for a moment, only, will vanish
forever. When counsel talks of the Law^ of War, I understand him ;
it is a Code, which has been so long practiced as to be
intelligible. The law of war means, in the first place,
the articles of war, existing by Act of Congress, and gov
erning the Army and Navy of the United States according
to which, even in time of peace, disrespectful words spoken
of the President cost an officer his commission, and dis
obedience his life, sending a challenge, or taking too much
wine, his comraission, and by which the common solder,
who sleeps on his post, or leaves it before he is relieved, is
shot; by which, in time of war, every officer and man who
does not do his uttermost to destroy the enemy, is liable to
suffer death.
It is a system for the armed force, ¦vindicated, not by
courts and juries, but military tribunals assembled at com
mand, and under which, we have seen in every service, for
they have their articles of war in all countries, soldiers of
the highest rank disgraced and degraded, sometiraes justly,
sometimes as victiras sacrificed by this law of necessity to
public disappointment and unreasonable expectations. It

—79—
is a system of despotic discipline and severe examples, which
are meant to inforce those extraordinary efforts which are
required to meet the exigencies of war, when it comes, and,
in the meantime, to temper and prepare men for it.
When the progress of successful war carries us into a
hostile country, we take with' us, if not this code, rules
which are germain to it, and apply them to the inhabitants,
their courts of justice, if those of an enemy were to be
trusted, being usually found by an 'invading army closed,
and the whole population disaffected to a new dominion
suddenly imposed on thera by force of arms. The necessity
to keep them down, and the indifference of the conquerors
to their fate, make military justice inevitable. The rule is
vce victis, and they submit to it. So an insurgent country?
one which had risen against its own government, and in
which troops were operating, would be, for the like treasons,
more or less liable to the same code.
So, the government of an invaded country, where the
invaders had so far prevailed as to drive away the Courts
and imperil the public safety, might be forgiven, should they
undertake to supply the wants of the people and provide for
the Salus Pepublicoe, guided by the law of necessity. For
example, were England invaded, or in insurrection, the
minister who took such measures with happy results — I say
with happy results — would be indemnified by Act of Par-
' liament. In the United States he would be probably in
demnified so far as Congress was able to indemnify.
But, where would he be if he were unfortunate, andjiis
measures came to disaster ? Or, would he be indemnified if
his course were preposterous or dishonest? If he were all
wrong? Shall he be indemnified when he treats alike
South Carolina and Pennsylvania ? Shall he be indemnified
for bringing to bear the articles of war upon a region where
there are no military operations, no public enemy, no
insurrectionary people, and where, though prosperity seems
. to have disappeared, tranquility yet remains ? Is the war

— 80-^
power well used on us ? The courts of Pennsylvania are
open, justice never was stronger, the government, if it is
staggering, does not stagger under our blows ; on the con
trary it has the unlimited command of all our resources. If
traitors and rebels are abroad, why not .let them be arrested
and tried according to the law of the land ! Shall whips and
scorpions be our institutions, and no man know why ?
Shall this iron rule govern, as if we were enlisted sailors or
soldiers, as if we were the inhabitants of a conquered
province, as if we were insurgents against the State, as if
we were living in the midst of sacked cities and devastated
fields, with all the appliances of public and private affairs
BO thoroughly disjointed as to make it the duty of power to
save us from final ruin by the most desperate measures?
Is this your necessity ? Does your necessary war power pro
tect authority against the consequences of dropping the law
and taking up the war power before its time, and when there
seems to be only one motive for it, which is by no means
the reason given ?
If counsel mean that Mr. Lincoln and Mr. Seward, who
have put their names to this proclamation, are answerable
for it with their heads, that they have the same right, but
no more, to save the country at the expense of the law than
I have, or any other citizen, there is no dispute betjveen us.
He is comprehensible enough. He tells us then that the
proclamation of the President, countersigned by the Secre
tary of State, is not raore binding than if it were issued by
the Marshal of the District and certified by the Clerk of the
Court. But he does not say that; he tells us this paper is
the law, and that you, sir, a magistrate invested ¦with ju
dicial authority, are bound by your oath of office to carry it
out ; and that I deny.
I deny his whole position. I deny that it ia comprehenai-
ble. Gentlemen tell us of the war power and the neces
sary war power, but nobody yet has drawn forth this monster
from his thoughts, and explained to us what it is. Even

-_81-—
when at peace we were liable to dominant ideas. Is not
this war power an ism ? Is it not one of that class of
fallacies? — a phrase of bombast, a large word signifying
nothing ? Shakespeare, who took the wind out of so many
sails, and drew the curtain both of past and future, fore
knew the ways of 1862. A plain question being asked by
certain citizens of Venice, the Commander-in-Chief to
whom it was put, he says :
" Evades them with a bombast circumstance,
" Horribly stuffed with epithets of war."
It was, no doubt, the war power — the war power which
is not in the Constitution, but in the high necessity of the
case — the will of the General. But what can that be
to the free citizen of an uninvaded country ? In the enemy's
country it is everything. It is something, as between the
seceded States and the Union. But it is " a tale told by an
idiot," when they talk of applying it to Pennsylvania, to a
region in its normal condition, as we are to-day, for we are
abnormal in nothing but the usurpations of authority.
Rights and duties, let me tell the learned gentleman, are
reciprocal in Pennsylvania. When a community assembles
and makes its laws, they are to be administered by those in
power and obeyed by the people ; the right of authority is
to command, the duty ofthe citizen to obey. But is it the
right of authority to command that which it is not the duty
of the citizen to obey ? — Can they command that which he
must not obey? If counsel ask, as they do out of doors,
whether any good citizen, in Mr. Lincoln's place, would
not do as he has done — usurp, I answer hia question with
another question, would not any good citizen in our
place do as we do — resist ?
' If the President may be right in his resort to force be
cause he thinks it necessary, the citizen cannot be wrong,
when, thinking it unnecessary, he resists. Mr. Lincoln
rnust remember that force is the game of kings. If he
weire an hereditary monarch, to strengthen his hands and

— 82—
increase his power would be respectable — would be acting
his part. His 'course would not be revolutionary because it
might be successful. But where men have liberty, and he
is only one of thera, he coramits a fault "when he invests
them with the right of resistance. To offer to usurp with
out the power to carry usurpation through, is a folly.
When, before arms were taken up, and points of doctrine
were still discussed in the country, the Southern States up
held secession as a Constitutional right, to which Mr. Lin
coln answered and we all answered : yes, it may be a right,
but not a Constitutional one, it is the right of Revolution,
it is a right not founded in law, but force, itis good if you
are stronger than we are, and not otherwise. If he has
adopted the Southern code and intends to carry it out, if
this be the proclamation, it is intelligible, if not, I profess
myself unable to understand it.
I see no half-way house between the law of the land, and
no law at all. Ifl reject the law, I am an outlaw. If this
paper does not mean the law of the land it means violence,
and the citizen's right is to resist it.
If Mr. Lincoln can proclaim the law of fire and sword,
so could John Brown, who was about to make his proclam
ation when he was cut off by the other law. Any glooray
enthusiast who may appear araong us, like those Puritans
of Cromwell's day, whose religion, above the Gospel, above
virtue, above faith and works, was fed by an inward flame
of fanatical convictions, which made their possessor inde
pendent of God and raan, may come and exercise his fury
upon us, if he can. His title to proclaim necessity is as
good as the President's. When it comes to that, all are
equal, and one man is like another; place, order and de
gree are nothing. Any raan raay save his country. Who
ever, no matter how humble, will assume upon his soul and
body the responsibility of dashing aside the law, and res
cuing the imperilled State by a miracle of his own per
formance, may perforra it if he can, and take the conse
quences if he cannot.

— 83 —
And, when they talk of a necessary war power, do they
mean that any war, no matter whether great or small, how
or why declared, or carried on for no matter what object,
and in what mannor, has this magical effect of swallowing
up the freedom of the people, in whose name it is declared ?
If war resolve us into a despotism, what sort of war must it
be ? The Mexican war was a flea bite — would it have suf
ficed to Mr. Polk for a proclamation like Mr. Lincoln's ? If
not, and only great wars will do, is there no difference be
tween great wars which, by uncontrollable events, are forced
upon a patriotic government, and those which the follies of
a government drag down against their cries and remon
strances upon the heads of the people ? Are we slaves to
necessity alike in both cases ?
Not only may hostilities be forced on an unwilling people,
but vvith motives on the part of their rulers, good or bad.
The Congress of '76 made a war, and so did Madame de
Pompadour. It may be waged for the basest reasons, or for
the purest and best, to secure the Union or accomplish its
destruction, to subserve the great ends of the country, or to
maintain in power and place, and gorge with ill-gotten
wealth, the ignorant and vile.
And where did Mr. Lincoln learn that war was such a
curse that it mattered not how many others came with it?
Had we gone to war on the Maine boundary question, in
1846, or the Oregon question in 1842, we would not be
where we find ourselves to-day. A year or two of hostilities,
with a foreign enemy, would have saved quarreling at home,
refreshed the people, purified our institutions, produced a
crop of statesmen, expelled faction, cleared the country of
much rubbishy politics, and, giving us something better to
think of than the fugitive slave law, made good the Union
for a century to come. A war, — the war of 1812, first made
us a nation, and brought forward those great and patriotic
men, alas ! no more, who, could they have lived till now,
would not have let us sink to our present depths !
Did Mr. Lincoln ever trouble himself to think how raany
8

— Si-
years of national life, the world over, are passed in hostili
ties ? Ours is a country of trade and peace, but about a
sixth of our short existence reckoning from the oiitbreak
ofthe revolution to the happy era of his own inauguration,
and including only the two wars with England and the one
Avith Mexico, we have been fighting — yet never were made
slave's till now. The Constitution which secured the citizen
his liberty only in time of peace, would be a cheat, and Mr.
Lincoln's philosophy, if it teach otherwise, is ignorant,
shallow, and pemicious.
The teraple of Janus was shut twice only in five pros
perous centuries, and the great and all-wise Bacon said that
arms should be of a nation the "principal honor, study,
and occupation ;" that a "just and honorable war is the
true exercise" of a people. If war mean chains and slavery,
why did he advise it ? But wars such as the Romans waged,
and Bacon'counselled to his bold countrymen, were not the
wars of scur'vy politicians.
Tt would be easy to show, without going far for the illus
tration, that worse misfortunes than war can befall a coun
try. Neither the wars of modern England, nor ancient
Rome, brought with them the enslavement of the people.
The English have progressed steadily in freedom, and the
vast conquerors ofthe world only lost theirs after bad men,
the moths of peace and base material views had so degraded
Roman politics that if they wanted a consul they took a
horse instead of a statesman.
But let us look to that philosophy which teaches by
examples. If the rule be as contended by counsel, we shall
find it in the practice of nations.
When the gentleman talks of rule and law, 1 suppose he
means to speak of the rule and law of the United States.
and of England, the law of England, since 1688, and the
law of the United States, as it always has been — which is
the law of England, with rather more of the light and air
of freedom let in upon it, since the achievement of our
independence. Very well. Let him take to his books, and

— 85 —
¦find me the American precedents of martial law. Let him
show me, if he can, by the volumes containing the laws and
annals of England, since their revolution, such policy as
you are urged to rule this day, such despotisra under the
British crown as we are required to submit to in this repub
lic. I do not mean their law for the East Indies or Cape
of Good Hope, or their history there. I do not ask .what
they may have done in their distant possessions, but at
home. They raay have one rule for their dependents, and
another for themselves, aud that is very natural.
No British king, since 1688, has proclaimed the law of
war or, for a moment, attempted to execute it. Yet there
have been junctures there and plenty of them as threatening
and dangerous as ours of to-day. From the dethronement
of James H, in 1688, to the accession of George HI, in 1760,
the succession to the crown was in dispute, much more than
half the nobility and gentry being traitors iu their hearts,
and no small number of them in act. Marlborough who
led their armies, Bolingbroke who ruled the State, and other
men of the highest condition, were exiled or sent to the
tower. Some were executed for their treason. The king
dora was three times in actual insurrection. Plots to brino-
about a change of dynasty never ceased ; aud once the in
surgents with the Pretender at the head of a victorious
army were within four days march of London. William,
sitting upon an unsteady throne, had to contend, during his
entire reign, amid constant defeats in the field, with the
overshadowing power of Louis XIV ; and his successors,
down to Geoi^e III, fought all their foreign wars with dis
contents and rebellion, sraothered or actual, at horae.
After, under George IH, they had passed through one
successful war, and one that was most disastrous, the French
revolution broke out and flooded so many lands, England
among the rest. They were in the greatest danger. French
principles, as they were called, seemed ready to overwhelm
them. Societies and organizations existed all over the
country for their introduction, and for fraternizing with the

— 8G —
revolution. The nation would have been swept into the
vortex had not the aristocracy, who had everything at stake,
resisted, with, on the part of the majority of them, the ut
most determination. But the agitation was terrible, the
wisest heads were staggered. English sobriety of judgment
seemed to disappear. Everything ran to excess, and all
opinions were extreme. A raan like Mr. Burke was insisted
to have actually lost his senses and to have become a Sort
of magnificent political lunatic. The fleet mutinied at the
Nore, invasion was imminent, the successes of the enemy
assuraed a magnitude of military proportions such as had
not been known in the world since the fall of the Roman
Empire. It is not necessary to recapitulate English troubles be
tween 179-0 and 1814, or go through their ups and downs
since 1688. Suffice it to say that, throughout them all the
municipal law prevailed ; that system, — and administered
by tbe regular courts of justice — was the only law and
equity which England knew, unless when the habeas corpus
v/as regularly suspended by act of Parliament, in this cen
tury and three quarters of time. If during those eheckered
days the gentleman can find that the British Cro-wn once
attempted to try a British subject by miHtary commission,
or ventured to immure him " in any fort, camp, arsenal or
military prison, or other place of confinement by military
authority," not being a soldier or sailor, or dared to charge
against him such a mock offence as " disloyal practices," —
if he can find that they did not, on the contrary, uniformly,
and always, whatever raay have been the extent of public
peril which surrounded thera, tolerate free speech and free
action in all raen, whigs, tories, traitors, radicals and revo
lutionists, no raatter whether their object was to overturn
the governraent, or only to change the administration of
it, — subject to no other responsibility than that of punish
ment according to law ; if he can find that tbe war power,
or the . law of necessity, or anything like it, ever was pro
claimed or acted on, he will prove himself a discoverer

— 87 —
indeed. I say that in the country of which we speak, sueh
an invasion of liberty would be regarded as revolutionary,
and treated accordingly.
So much for English example. What has been our own ?
The war power, unless for the army and navy, or militia
when called into the service of the United States, was
never once exercised ; — its existence was unimagined. From
the meeting of the first Congress in this city, in Septem
ber, 1774, less than two years before the declaration of our
independence, to the peace of 1783, at which it was acknow
ledged by England — nine years of revolution, and eight of
civil war; — during the period of our confusion and weak
ness, from the peace of 1783, to the framing of the Consti
tution, in September, 1787, and its ratification by the
States, and the organization of the governraent under it,
in March, 1789 ; thence, in our time of national infancy,
through the excitement of the revolution of our friends
and allies, the French, to whora we were under treaty obli
gations of a very erabarrassing kind, a period of infinite
perplexity, when we were hardly able to bear it; after
wards, through the perils which attended our neutral posi
tion, when the rest of the world was fighting, down to the
war of 1812, at the end of which, we, for the first time,
found ourselves in smooth and deep water ; and thence to
the election of Mr. Lincoln in 1860 ;— during these eighty-
six years, in the course of which the opportunities — if war
and calamity could produce them, were of but too frequent
recurrence, no American statesman, no President, no Con
gress was ever rash enough to anticipate the law of the 24th
of September, 1862.
Anything like it our history has not developed — our peo
ple have never imagined ! Martial law and military pris
ons ? ! No political pilot, no untoward events, no tides or
currents, no war aud revolution ever carried us within sight
or sound of such breakers as these! To sail upon such a
sea of folly was reserved for honest Mr. Lincoln.

But I do not stop with the negative ; with the fact of the
absence of a single case of assuraption of this necessary
power. I proceed to show, by the English and Araerican
books, what must have been the predicament of the Exec
utive who took such a step. I do not confine myself to
British authority since their revolution.
Sir Matthew Hale, who died in 1676, brings this law to
its true proportions, at a word. He says it is no law.
" But touching the business of martial law, these things are to be observed,
" viz : — First. That in truth and reality it is not a law, but something indulged
" rather than allowed as a law ; the necessity of government, order, and dia-
" cipline in the army, is that only which can give those laws a countenance,
" quod enim necessitas cogit defendi."
" Secondly. This indulged law was only to extend to members of the army,
" or to those of the opposite army ; and never was so much indulged as iu-
" tended to be executed or exercised upon others ; for others who were not
" listed under the army, had no color or reason to be bound by military-con-
" stitutions, applicable only to the army, whereof they were not parts ; but
" they were to be ordered and governed according to the laws to which they
" were subject, though it were a time of war."
Lord Loughborough, as Chief Justice of the Common
Pleas, in the case of Grant vs. Gould, in June, 1792, says
of martial law, " it does not exist in England at all."
" Where martial law is established, and prevails in any country, it is of a
" totally different nature from that which, by inaccuracy, is called martial
" law, merely because the decision is by a court martial ; but which bears no
" aflSnity to that which was formerly atterapted to be exercised in this king-
" dom, which was contrary to the constitution, and has been for a century
" totally exploded."
Blackstone, who delivered his lectures in 1758, afterwards
published as commentaries on the Law of England, and
who was no enemy of power, when he comes to martial
law rejects it.
" For martial law which is bailt upon no settled principles, but is entirely
" arbitary in its decisions, is as Sir Matthew Hale observes in truth and
" reality no law. but something indulged rather than allowed as law. The
" necessity of order and discipline in an arm'y is the only thing which can
" give it countenance; and therefore it ought not to be permitted in time of
" peace, when the king's courts are open to all persons to receive justice
" according to the laws of the land."

— 89 —
I must not omit to observe that English authority shows
how they regard, in that country, the military law, even
when applied to the soldier. The civil courts recognize,
and are bound to recognize, the articles of war, as part of
the law ofthe land, but woe to the military man who steps
beyond the line of his strict right. If he use his authority
with motive which is not legitimate, or in passion or anger,
if he compel, at the hands of his subordinates, the perform
ance of functions, or obedience to orders which, however
praise-worthy, are not in the book of military duty, as for
exaraple to attend school — ¦which is one of the reported
cases — if he anywhere cross the limit, he must answer for
his error in courts which hold him to a jealous account,
WTiat he does is weighed and measured. What, in another
department of the law, we call the excessive execution of a
power, is dangerous. The cases on this head are numerous.
In one of them Colonel Wall, the Governor of a British
West India Island, was tried for having punished by whip
ping a soldier, who died of his hurts. Several witnesses
showed the outrageous conduct and violent language of the
deceased. The witnesses for the prosecution were contra
dicted in material points. The prisoner was a man of rank,
had distinguished himself in the field, was nobly connected,
and strange to say, earnestly solicited and insisted on being
tried for the soldier's death, which had taken place not less
than twenty years before, and of which he believed him
self innocent ; but, the jury at the Old Bailey having found
him guilty, Oolonel Wall was hanged in 1802 -for excessive
execution, in 1782, of his power of martial law.
I take up now our own books, where we have a case in-
which the whole ground was covered by every department
of government. Executive, Legislative and Judiciary and by
the sentiment of the entire country beside. T mean the-
case of what is called General Jackson's fine. It serves tO'
show the view which was universally taken, a.s lately as-
in 1843, by the authorities and people of the United States,

—go
of all classes, of the difference between justifying martial
law and only tolerating its exercise subject to punishment.
Gen. Jackson haviug enforced martial law at New Or
leans inthe winterof 1814-15, then beleagueredby the Brit
ish, and his measure being impeached in the newspapers of
the place by Mr. Louallier, he arrested him, and Louallier
having obtained from the judge of the district court of the
Uuited States, for that district, a writ of habeas corpus. Jack-
sou caused the person of the judge, also, to be seized and
conveyed beyond his military limits. When, some days
after, official news was received of the peaee of Ghent, the
judge being released, again opened his court, summoned
Jackson to his presence, and imposed on him a fine of a
thousand dollars, which was instantly paid.
This act produced a strong feeling of the kind so
natural to freemen when they see, underany circura
stances, and in any emergency no matter how pressing,
the military power placed above the civil ; and Jackson,
all covered with laurels, was promptly, though iuterms
full of courtesy, called to account when [intelligence
of what had passed reached Mr. Madison. The acting
Secretary of War, the late Mr. Alexander Jaraes Dallas, was
instructed to address him, and wrote, under date ofthe 12th
April, 1815, an official letter by which after expressing the
national gratitude and that of the government for the pro
digious services which had been performed by hira, and
after setting forth that representations had been made to the
President " respecting certain acts of military opposition to
"the civil magistrate, that require immediate attention, not
" only in vindication of the just authority of the laws, but
" to rescue your own conduct from all unmerited reproach,"
he proceeds thus :
" From these representations, it would appear that the judicial poivcr of
" the United States' has been resisted, the liberty of the press has heen sus-
' ' pended, and the consul and subjects of a friendly G overnmeni. have beeu ex-
" posed to great inconvenience fey an exercise of uiililary force and command

— 91 —
" The President views the subject, in its present. a=ipect, with surprise andso-
"licitude; but, iu the absence of all inform'ition from yourself relative to
" your conduct, and the motives for your conduct, he abstains from any deci-
" sion, or even the expression of an opinion upou the case, in hopes that such
" explanations may be aff'irded as will reconcile his sense of public duty with
"a continuance of the confi'leuoe which he reposes in your judgment, disore ¦
"tion, and patriotism. He instructs ma. therefore, to request that you will,
"with all possible despatch, transmit to this department a full report of the
" transactions which have been stated ; and, in the meantime, it is presuraed
"that every extraordinary exertion of military authority has ceased, in con-
" sequence of the cessation of all danger, open or covert, upon restoration of
"peace." But time brings with it oblivion ofour faults. This fine
was by the Congress of the United States repaid in 1843,
twentj'-nine years after. It was repaid under circumstances
to produce the extremest sanction of Jackson's conduct
which it was possible for a grateful country to bestow ;
but without its occurring even to his most ardent admirers
to go the length of pretending a legal justification of
his aet. It would be needless to recur to the warmth with
which the subject of restoring this small sum of money was
pressed, the heats which it caused, and thespirit of investiga
tion of the whole question of martial law which wasawakened
throughout the country. It became a prominent topic of tho
day. Eighteen States ofthe Union passed resolutions, whioh
were transmitted to Congress, expressing their wishes that
the amount of the fine be refunded.
Pressed with the utmost zeal by one side, and op
posed or discouraged by the other, it became throughout the
Union a party test.
The conduct and motives, and even the character of the
judge who had imposed the fine, were impeached in
debate, so far did their ardour transport the majority.
They finally succeeded, by very large votes of both
Houses, in carrying through a bill, which was to approve,
to the utmost limit, to which approbation could go consist
ently with the Constitution, the conduct on a trying occasion
of a public servant of boundless popularity. It would
not be too much to say that in the course of the
9

— 92—
examinations of the subject of martial law which took
place, at and before the passage of this act of Congress, in
all parts of the country, no publicist came to the conclusion
that martial law was raore than law which was the law
when it was too strong to be resisted; and it may confi
dently be asserted that to the opposite conclusion carae
without hesitation or doubt the universal mind of the
whole country. Both parties and all persons in and out of
Congress uuited on it.
The case was also judicially considered almost immedi
ately after the events which gave rise to it, by the Supreme
Court of Louisiana in March terra, 1815, in Johnson v.
Duncan, to be found in the 1st vol. of the Condensed Re
ports of that State, page 157. I read from the opinion of
Mr. Justice Martin on that page :
Martin. J. — A motion that tbe Court might proceed in this case, has been
resisted on two grounds :
"1. That the city and its environs were, by general orders of the officer,
" commanding tbe military district, put on tbe 15th of December last under
" strict martial law.
" 2. That by the 3d aectlon of an act of Assembly, approved on the 18th of
" December last, all proceedings in any civil case are suspended.
'' I. At tbe close of the argument, on Monday last, we thought it our duty,
" lest the smallest delay should countenance the idea that this court entertain
" any doubt on the first ground, instantly to declare viifa voci-, (although the
"practice is to deliver our opinions in writing,) that the exercise of an au-
" thority, vested by law in this court, could not be suspended by any man."
The case of Luther v. Borden, in 7 Howard, is cited on
the other side. But what was ruled there ? In Rhode Is
land, in 1842, the Dorr rebellion — as it was called — having
broken out, the Legislature passed an act declaring martial
law. The power of the State was arrayed against the
insurrection, aud in the course of military movements '
which took place, the house of a citizen, an adherent of
Dorr, was broken into for the purpose of arresting him.
When the controversy ended, as it did very soon, in the
total defeat of the Dorr party, this citizen brought his
action of trespass for entering his premises against the de
fendants, who were in the military serviee of the State.

— 93 —
The Circuit Court, in which the action was brought, gave
judgment against him, and the Supreme Court at Wash
ington affirmed this decision, in an opinion delivered by Mr.
Chief Justice Taney.
The Court ruled, as had the Courts of the State, that
Rhode Island, which had never framed for itself a limited
Constitution, held its political power according to the original
charter granted by Charles II, iu 1663, not altered at the
Declaration of Independence, or since, until after th se
events, and that the act of 25th. June, 1842, by which the
Legislature declared that the State was "placed under
martial law," being a temporary provision only, was neither
contrary to the clause of the Constitution of the United
States by which a Republican form of Government is guar
antied to each State, nor to the charter of Charles II, and
was good and valid.
Having so ruled, they held that the breaking into the
Plaintiff's house by the party acting under the military au
thority ofthe State was covered by their plea of justification,
and the suit could not be raaintained.
They held that the question, made by the plaintiff, who
were the constituted authorities of the State, the Dorrites
having set up a government of their own, which they insisted
was the true and legitimate one, was not a judicial question ;
that the Senators and Representatives under the Charter of
Charles IL. being admitted to sit in Congress, and the Presi
dent of the Uuited States, under the act of Congress of 28th
of February, 1795, the act to which 1 have already, more
than onee, referred, authorizing the President, on apphca
tion of the Legislature of a State, to suppress insurrection
against it, having taken measures to put down the insurgents
against the Charter Government, the State authority thus
recognized by Congress and the President could not be
called in question " in a judicial tribunal;" that the Court

— 94 —
could not go into the question offered to be raised between
the Charter and Dorr Governments.
The Court therefore ruled two points, one that under the
Rhode Island Charter the State could declare martial
law, the other that they could not inquire whether the
Dorrites were or were not, the authorities of the State when
Congress had already decided the question, and the Presi
dent was about to march troops in support of their de
cision. It is on this latter point that the language of tbe
Chief Justice in delivering the opinion of the Court, has
been quoted, and most unjustly to that eminent magistrate,
a.s inconsistent with his ruling in Mr. Merryman's case.
" After the President has acted and called out the Militia, is a Circuit
" Court of the United States authorized to inquire whether his decision waa
" right' Could the court, while the parties were actually contending in arms
"for the possession of the Government, call witnes.ses betore it and inquire
" which party represented a majority ofthe people ? If it could, then it Would
" become the duty of the Court (provided it came to the conclusion that the
"President had decided incorrectly) to discharge thoae who were arrested or
" detained by the troops in the service of the United States or the Government
"which the President was endeavoring to maintain. If the .Judicial power
" extends so far, llie guarantee contnined in the Constitution uf the United
•' .-iiales is a guarantee of anarchy, and not of order.
On the point, -when it was pressed on the Court.,
that Congress was wrong in admitting any but the
Dorr Senators and Dorr Representatives to seats in
Congress, and the President would be wrong if he marched
troops against the Dorr insurgents, the Chief Justice, reas
oned to the conclusion that it would be absurd that the
Judiciary should review the Legislature and Executive ;
that, to interfere in the midst of arms and domestic violence,
upon a question which of the two Governments was the
legitimate one. Congress having Constitutionally, (and this
was not denied) passed upon it, and the President being
about, Constitutionally, under the authority of Congress (and
this was not denied) to support their decision, would be
worse thau absurd. That the question was a political
que,stion, exclusively, and the Judiciary bound by the

— 95 —
measures of Congress and the President. The Chief Jus
tice does not say that the Judiciary could not take cogni-
ance ofa question which arose under an unlawful exercise of
power by the President, but that Martial Law, being lawfully
declared by the Government of the State, the President —
Congress having recognized that government — could con
stitutionally support it against domestic violence with his
military power, and that the Supreme Court of the United
States was not competent to enquire whether he ought or
ought not to use that power. "If the Judicial power ex
tends so far" said he " the guaranty contained in the Con-
" stitution is a guaranty of anarchy and not of order."
He does not say that, in using his military force, the
President and the officers acting under him, are not amen
able to the law. The question of the manner in which
it was to be used by him never reached the Court, for the
forcible interference ofthe President never took place, and
the trespass committed by the Rhode Island authorities, was
justified by their power under the Charter to declare
Martial Law.
Not a word ofthe Chief Justice applies to the President's
right to set aside the law when he interferes to suppress an
insurrection. Not a word is applicable to such a question.
Therefore, not a word which he said is applicable to Mr. Mer
ryman's case or to this; and what has been urged as incon
sistent with that case, while it was in the opinion was not
in the decision of the Court, and could be omitted from
the opinion without affecting either the soundness of the
decision or the course of argument by which it was ar
rived .at.
.A word more, and I have done. If we dethrone the law
because it is imperfect, what shall we put in its place?
The same necessity which authorizes the arrest of a pri
vate citizen will warrant the violation of the person ofa
judge, or of the members of both hou-ses of Congress,

-ge
and thus the aborption of the entire power of the State.
The difl"erence between Mr. Lincoln's right to pass over the
body of Congress to reach his ends, and his right to im
prison a bank-teller is nothing but a question of discretion
in the use of usurped authority.
Necessity under the Constitution of the United States
means that which we decided to be necessary when we
agreed upon a Constitution. Our Constitution recognizes
State necessity and provides for it in its own way. If
it were intended to go further -the Constitution would
have said so. It would have been written down that while
such and such were the laws of peace, or of small wars, and
small insurrections, to meet gieat wars and great insur
rections the great law of necessity was still behind, and
the President might act accordingly.
Aud when they wrote it down they would have qualified it
as well as tbey could. They would have endeavored to limit it
to time, place, and circumstance. They would have encom
passed it with safeguards. They would have affixed penalties
to the abuse of it. They would have attempted, if not to
control the Executive in the use of his dictatorship, at least to
hold him to a severe account when he came to lay it down.
They would not, when they were providing for so many
contingencies have omitted all security against that of
which they must needs havehad the most apprehension.
If those great men who framed the Constitution could
for one instant have admitted to their souls the thought,
harbored by the two politicians who put their names to this
proclamation, that there was this " higher law" of necessity,
that the work to which they had given so much p"atriotic
labor, existed but at Executive pleasure and could be puffed
away "as a necessary measure" to secure militia drafts,
and enlistments — that to prevent " disloyal practices,"
" martial law," and " forts, camps, arsenals, military pris
ons and other places of confinement by military authority,"

— 97 —
were to push aside the Constitution, — if Washington and
his compeers — as wise as Mr. Lincoln and his Cabinet — had
understood all this, and tasked their wits to put the necessary
part of our laws on paper, what could they have written
down for us ? Why nothing! Everybody knows what the
law is, and everybody knows what it is to be without any,
but nobody what this other thing is which is neither law
nor the absence of law. Nobody has told us wheu this
thing prevails, what our rights are, how our wrongs are to
be redressed, what would be our Constitutional status, what
the condition of the citizen who lives under it.
The difference between modern light and liberty and the
condition of the world as it used to be is made by the
law, which has expelled necessity. We profess to have
established a systera which anticipates public wants,
provides for them, and must be obeyed. All the magistrate
has to do is to follow it and originate nothing.
We have a written Constitution — and that is an Ameri
can peculiarity — which only the people can change.
This may bave its inconveniences, but it serves to show
how determined were our ancestors to clear themselves of
the law of necessity. If the three branches of the Govern
ment of the Union, and every State establishment should
unite in the opinion that it was absolutely necessary to do
something outside of the Constitution, they could not effect
it.' They must abide by the law.
When an act of Congress comes before the Judiciary, on
the question of its according with the Constitution, the
Court looks to that instrument, and if the power which has
been exercised is not found to have been there bestowed
as a Legislative function, the act is declared void. It
falls to the ground. The citizen is not bound by it, he
sets it at naught. Nobody ever heard of a Judge asking
himself the question whether an act not warranted by the
terms of the Constitution ought not to hol^good, because

— 98 —
it was necessary. No Judge ever gave utterance to such
a sentiment. The suggestion — which has brought our
country to the very brink of ruin — that there was a higher
law than the Constitution was a great political mistake which
has stuck to the author of it like the poisoned shirt.
The preseut ills of the State are the evidence of it.
Should they prove fatal and all our hopes — our vain hopes
and vainer boastings — end here, let posterity over the grave
of the Republic write for our epitaph these words — these
MEN LOST THEIR LIBERTIES WHEN THBY FOUND A LAW HIGHER
THAN THE CONSTITUTION !

9Ul