CONGRESS, U. S. 



237 



marshals, who are to have the right, in addition 

 to their military duties, to arrest any citizen 

 throughout the country on indefinite charges, 

 and to call in military aid to sustain their ac- 

 tion ; and they are to report to the central au- 

 thority at Washington, and hold the party in 

 custody subject to the orders of that central 

 authority. There is no law which authorizes 

 such an organization as that. If the judiciary 

 attempt to intervene, as in the case of the pris- 

 oner at Fort "Warren, the bayonet of the sol- 

 dier prevents the service of the writ upon the 

 military commandant who has possession of 

 the prisoner. The judiciary, then, are power- 

 less for redress; and under this asserted right 

 on the part of the President, that feeblest de- 

 partment of the Government being powerless 

 to redress individual wrong, if the legislative 

 branch, which is equally powerful with the 

 executive, are not to interpose by calling for 

 the information, the facts, and by the expres- 

 sion of their opinion, if it be necessary, when 

 the facts are returned to them, what protection 

 has the citizen against the aggressions of execu- 

 tive power ? Can a Government be a free Gov- 

 ernment, where, when the judiciary is set at 

 defiance, the legislature unites in saying to the 

 citizen : ' You shall have no investigation ; you 

 may be arrested by officers unknown to the 

 law, indefinite in numbers, on offences un- 

 known to the laws, not described, for disloyal 

 practices, which may mean anything that an 

 executive officer pleases ; you may be arrested 

 not only by the order of a functionary at "Wash- 

 ington, who, from his position, may be sup- 

 posed to have ability to exercise some discre- 

 tion, but you may be arrested at the discretion 

 of any one of his subordinate deputies, and an 

 investigation is not to be made by any other 

 tribunal than by an ex parte return made in 

 your absence, and without any power of inves- 

 tigation on your part, to the central authority 

 at "Washington? ' If the proclamation of the 

 President of the 26th of September be carried 

 out, and the general facts that have occurred 

 taken as matters of history, that is the state 

 of things and the power claimed by the execu- 

 tive. Sir, I consider that power a subversion 

 of this Government. I consider it also unne- 

 cessary; and though the honorable senator 

 says that while we are engaged in war he 

 would not call for any account from the execu- 

 tive department for its actions, I submit Hiere 

 is a wide distinction there. I am asking noth- 

 ing in reference to a continuation of the war. 

 I am seeking not to embarrass the Government 

 in, reference to the prosecution of the war; but 

 war certainly can be in the present, as it has 

 been in the past, prosecuted without trampling 

 upon the rights of the individual citizen at home, 

 and in States which are entirely untainted by 

 anything like resistance to the authorityf otho 

 Federal Government." 



Mr. Sherman, of Ohio, expressed the follow^ 

 ing views on the arfests which had been made : 

 " I say to my political friends that we cannot 



afford these arrests ; they should not be made 

 except Avhere the facts are so glaring that 

 when they are stated to us here by the Secre- 

 tary of War, every one of us will say he did 

 right in making the arrest. We ought, in jus- 

 tice to ourselves and to our constituents, to de- 

 mand of the Secretary of War a reason in every 

 case for the arrest made. I have that confi- 

 dence in the President of the United States, 

 who I believe is thoroughly honest and patri- 

 otic, and who would deprive no man of his lib- 

 erty without good cause, and I have that con- 

 fidence in the Secretary of War to believe, 

 especially since this subject has been made the 

 object of public inquiry, that they will not 

 make any arrest except for cause that in the 

 opinion of every loyal senator would justify the 

 arrest. Congress neglected its duty in not, at the 

 first session after the opening of this rebellion, 

 authorizing in terms, by law, the suspension of 

 the writ of habeas corpus, and imposing condi- 

 tions upon arrests, requiring the cause of the 

 arrest to be reported to Congress in each case, 

 and requiring an examination by a military or 

 other court. The power to suspend the writ 

 of habeas corpus should only be exercised with 

 all the guards that can be thrown by wise leg- 

 islation around it. Such a power uncurbed, 

 unregulated, and unchecked, would make this 

 Government a despotism worse than England 

 ever saw, worse than France was in the time 

 when lettres de cachet were used for the arrest 

 of citizens, and they were confined in dungeons 

 for forty years. The power to suspend the 

 writ of habeas corpus, while it must be exercised 

 in certain cases for the public safety, ought to 

 be so guarded by legislation that no oppressive 

 act to the citizen can be done, and in every 

 case of an unlawful arrest the legislation of Con- 

 gress ought to require that the person making 

 the arrest should make a formal report to Con- 

 gress, so that we and our constituents might 

 judge whether the necessity justified the arrest." 

 Mr. Powell, of Kentucky, followed in favor of 

 the resolution. He said : " Taking it for granted 

 that the writ of habeas corpus is suspended by 

 competent constitutional authority, then I hold 

 that they have no right to make these arrests. 

 The writ of habeas corpus has nothing to do with 

 the arrest of an individual. The whole scope, 

 verge, and object of the writ of habeas corpus 

 is to relieve a man, when arrested, from il- 

 legal imprisonment. The object is to open 

 the prison doors, and to bring him before the 

 court, to inquire whether he is lawfully de- 

 tained or not ; and if he has been lawfully 

 lodged in the prison, it is the duty of the 

 judge before whom he is brought to remand 

 him to prison, and if it is a bailable case, to al- 

 low him bail, and if he is illegally imprisoned, 

 to let him go free. That is the only object of 

 the writ of habeas corpus. It is a great remedial 

 writ. The suspension of that writ confers no 

 authority on any officer in this Government to 

 make an arrest. The arrest and the discharge 

 are separate and distinct things. 



