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settled by the introduction of additional language in this Constitution. The declaration here is sufficient, as it stands, and the only effect of putting in what the gentleman proposes is to produce difficulty, for it can result in no possible good.

Gentlemen upon the other side of the House have heretofore manifested a great desire to leave this bill of rights in the condition in which the fathers left it. Some of them wanted to go back to Magna Charta. Now let them apply that same principle to this article, and let the bill of rights on this subject of military law stand precisely where the old

having been done by the executive authorities | in the way even of a plain statement and representation of the facts, which occurred right here, within his sight and hearing. In reference to what the executive is to do, every case will suggest its own remedy. I will not now, but when the proper time comes I shall take occasion to state what I believe to be the proper spheres of the State and of the Federal Government. And I will go just as far to preserve the authority of the Federal Government, within the limits of the Constitution of the United States, as any man upon this floor. Mr. STIRLING. I do not feel disposed to en-hill of rights left it. For if it is not necester into this very much vexed question which the gentleman from Prince George's (Mr. Clarke,) has raised, because, so far as the principle of the thing is concerned, I am perfectly willing to leave it where the bill of rights of Maryland now leaves it, and where the Constitution of the United States leaves it. If there is any necessity for putting an obligation upon the Governor of the State to protect the rights of the people of the State, he is now under as much obligation, under the Constitution of this State, or the Constitution of the United States, as he would be placed under by any provision which we could incorporate in it.

sary and proper to introduce an amendment in regard to one provision, it cannot certainly be proper in regard to another on that principle.

Mr. CLARKE. In reply to the gentleman from Baltimore city, (Mr. Stirling,) I will state that I stand here, a citizen of Maryland, protected by the Constitution of the United States, and the Constitution and laws of the State of Maryland; and, as I shall show when I come to discuss the relations of this question, under the aegis of the decision of the Supreme Court, as far as that decision goes. Therefore I am not going to be drawn into any discussion as to who created this great civil commotion, and how far they were justifiable, and how far President Davis, the so-called President of the Confederate States, may do this, that or the other, for I have nothing to do with that. The Supreme Court of the United States have decided that there is war and that those people are alien enemies; that the loyal man there is just as much an alien enemy as the man who is taken with a gun or a sword in his hand. There

It has recently happened, and will happen in every time of public commotion, and especially of civil war-it has happened in the portion of this country under the Government of the United States, and under the Government of the so-called Confederate States, that a great many people have been tried by martial law. Now, I am not going to enter into the question upon which that has been defended, that these people were outside of the provisions of the Constitution.fore I am not going to enter into any discusBut it has never been asserted that either the President of the United States, or the man who calls himself the President of the Confederate States ever said that they had any right to override the law; they have always endeavored to explain their acts as being consistent with the law. Now, whether they have done so or not I leave to those who are curious in that matter. I shall leave the question as to how far the provisions of the Constitution and bill of rights have been shaken by the convulsions of this bloody struggle to the reflections of those who commenced it. If they choose to shake the Constitution by the qualms of a political earthquake, they must go back to themselves to solve the question as to how far the Constitution has been shaken.

As to the general principle, I suppose everybody is agreed upon that; that the people ought to be tried by the established judiciary, and not by martial law. The question how far people have put themselves beyond the reach of that judiciary, how far they have become public enemies, is not going to be

sion about alien enemies, or what they did or do, or anything in reference to any matter of justification in reference to our course, whether they were legal acts this way, that way, or the other. I am going to discuss only the rights of the citizens of the State of Maryland. I had nothing to do with this impending struggle. My skirts are just as clear of it as those of the gentleman from Baltimore city, (Mr. Stirling.)

Mr. STIRLING. I had no intention to refer to the gentleman from Prince George's (Mr. Clarke.) I made the reference in a general way, not to particular individuals.

Mr. CLARKE. I am going to disconnect this question entirely from what may perhaps be I will say considered outside party bias. this: that some of my friends upon this floor have great veneration and love for anything ancient, and will not change it for any consideration if they can possibly avoid it. I am not quite so tied down to the past as some of them. I voted upon the proposition to let this first article stand-that the people have at all times the right of revolution, the un

alienable right to change their Government as they pleased-I voted that the change must be regulated according to law; that a Government regulated and established by law must be revolutionized according to law; for any other revolution can sustain itself only by force. And when the article in relation to the poll tax was reached, I there desired to depart from the lessons of the fathers, and make a change in that. And so in going through this bill of rights, wherever I am satisfied, by the experience of the past or the present, we should make some change for we all live to learn-I am not to be tied down simply by the fact that it was so written by our fathers. But experience in the State of Maryland having shown the necessity of having some provision in your Constitution which shall not be merely advisory to your executive and other officers, but one which will be mandatory, I will vote for that. It was supposed heretofore that it was only necessary to have an advisory clause: and a few years past it never was heard of, and any man who had intimated, when this bill of rights was drawn, that we should substitute "shall" for "ought" would have cast a reflection upon the State authorities. We had then seen in reference to many cases that had arisen the Pennsylvania cases, the cases under the fugitive slave law-that the rights of the people were manfully maintained; and gentlemen would have said, had you proposed this-"you are reflecting upon the Slate authorities." But we have lived to see the necessity of mandatory clauses. I want to say to the executive: you shall do something. What, I leave to his judgment. I want the Constitution to contain something else than mere advice to him; I want it so framed that when persons are placed in this position he shall find it his duty to do something, and to do the best of his ability. If he cannot succeed, if the Federal authority is the stronger, and is determined to exert its pow er and will to do it, and any opposition will bring about-a clashing of authority, then it can be determined how far measures are to be pushed. But I want something which shall declare to our State officers: you must at any rate do the best you can, for if you do nothing you certainly fail to do your duty.

Mr. SANDS. If the gentleman will permit me, I would remind him that this fifth article of the amendments to the Constitution of the United States, is simply declarative of a principle as applied to the Federal Courts; while our Constitution and bill of rights apply to our State Courts.

Mr. CLARKE. I want to make this same principle apply to our State officers.

Mr. SANDS. I think I understand the gentleman's position. I wish to remark that this amendment to the Constitution of the United States was simply to regulate a matter in the Federal Courts which in the State Courts is

regulated by the bill of rights and the Constitution of the State; that no man shall be tried in one of the United States Courts, and held to answer, without the presentment of a grand jury, and should not be put twice in jeopardy of life and limb for the same offence, just as our State Courts apply the matter. I would like to know of the gentleman how far his proposed amendment is in consonance with, or in conflict with the late act of Congress, not yet declared unconstitutional, expressly defining a great many crimes and providing the mode of punishment.

Mr. CLARKE. I do not regard it as at all in conflict with any law of Congress; and until it is passed upon judicially it must be regarded as an exercise of constitutional power.

Mr. SANDS. That act provides for the taking of certain parties out of the hands of the State authorities, and subjecting them to a mode of trial not known to our State laws and State Courts.

Mr. CLARKE. I think this is it; it provides that the parties shall be taken from the State authorities and transferred, not to Military Courts or Tribunals, but to the civil Courts of the United States.

Mr. SANDS. I think the gentleman will find it otherwise.

Mr. CLARKE. There are a great many acts of Congress; I do not know to which the gentleman alludes. I will go one step further; considering that the gentleman is right, if you please. When a citizen of the State shall be placed in this position, if you insert this provision in the Constitution, it will then become the duty of the Executive to institute the necessary proceedings for the protection of the citizen, to be carried up to the Court of highest authority, the Supreme Court of the United States, there to be adjudicated. If this provision had been in our present Constitution, I believe, with that before our Executive, some of these cases would have been carried up.

Mr. SANDS. I have no objection to my friend making a speech when

Mr. CLARKE. I want to show that this is a practical provision.

Mr. SANDS. In order to get a case before the Supreme Court of the United States, in order to test the constitutionality of any law, is the action of the Executive ever necessary

?

Mr. CLARKE Yes, sir: One or two sessions ago, the Supreme Court decided a case between Gov. Magoffin, of Kentucky, and Gov. Dennison, of Ohio, where a practical question was brought up by the two Governors in reference to the rights of the States. It is within the power of the Executive, and if this provision is inserted it will be made his duty, as the representative of the State, to carry the case up to the highest tribunal, the constitutional umpire, to be decided.

Mr. SANDS. The gentleman can hear what

I have to say, and then reply by an argument in his own time.

Mr. CLARKE. The gentleman put a question to me, and I only wanted to reply to it. Mr. SANDS. Then I will proceed with my argument without putting any interrogatories. I regard that a citizen's highest allegiance is to the United States. I acknowledge as the highest law power in the State of Maryland, the authority of the United States as expressed through the Constitution of the United States, and the acts of Congress passed in pursuance thereto. I believe that the first duty of every man in the State, from the Executive down to the humblest citizen, is an acquiescense in and support of the Constitution of the United States and the laws passed under it, until the Supreme Legal Tribunal of the United States has decided the act in question to be unconstitutional. We have late acts of Congress defining certain crimes.

Mr. CLARKE. I hope the gentleman will not misquote.

Mr. SANDS. I shall not. We have late acts of Congress defining certain crimes and abetting the military authorities with the decision of those cases. Does the gentleman suppose that we here, the representatives of the State of Maryland, shall embody that provision in the Constitution of the State, and submit to the people a provision in direct conflict with the Constitution of the United States, and the laws of Congress passed under it?

Mr. CLARKE. "In pursuance thereto;" quote verbatim. Mr. SANDS. "In pursuance thereto" is under it, not over it.

Mr. CLARKE. "In pursuance thereto," I want the gentleman to quote correctly when he quotes the Constitution of the United States, and acts of Congress.

Mr. SANDS. What I say is this, that every citizen of the State, that we ourselves here, the representatives of the State, are bound to render obedience to the laws of the United States, passed under the Constitution, not over it, not in defiance of it, or in accordance with any higher law doctrine; but under it. | I have heard of a power over and above us, that is not exercised over us, so far as the people of Maryland is concerned, we have heard that we are sovereign-I have heard that doctrine from the lips of many gentlemen-so far as the people of Maryland is concerned, she is sovereign. Now who will assert the doctrine that we are sovereign in our relations with the general government. Suppose it has provided in certain terms in regard to certain matters; would any action of ours contravening those terms be legal or binding? Most assuredly not.

Now I have shown, as this debate has taken a somewhat extensive range to-day, this in vindication of the government of the United

States. Now so far as Maryland and er citizens are concerned, taking gentleman at their word that Maryland is apart from and hostile to the government of the United States, that there are a majority of the people of Maryland who are antagonistic to the government at Washington, taking that for granted as gentlemen assert-then I say that the pages of history record no instance in which so little damage has been done to either person or property as in this State of Maryland in times of civil war. At a low calculation, I suppose, passing backward and forward, two millions of armed men, loving that government of the United States and fighting in its defence, and hearing on all hands that Maryland was a hostile province and held down by bayonets-two millions of armed men have passed over her soil. And look at Maryland to day, after these vast armies have swept through her: all through the State she is blossoming like the rose. How many of her fields are barren? How many of her dwellings are destroyed? How many of her citizens are in prison? She answers herself; look at her to-day in every respect in which she presents herself as a State. She is as prosperous and powerful as she ever was, and free as ever. And according to the will of the majority of her people, her free will is to obey the authorities of the United States, and to cling to the government which our fathers left us.

Now in regard to gentlemen being arrested because they would not vote, I wish they had applied that principle down among these alien enemies. Just listen to the assertion that gentlemen are arrested because they would not vote, when it is known that if they had voted, they would have voted against the authorities and the party in sympathy with the government that wanted to force him to vote.

Now in regard to statutes and constitutions, there is one thing above the law, and in that respect I am a higher law man, and I am not ashamed to avow it. That higher law is the law whieh God has given to every man, the law of self-preservation. Will you hold that a great nation is to be denied the exercise of a law which you grant to a single individual, when that great nation holds in its hands the destinies of many millions of human beings? If you deny to the government a right which you allow to a man, the right to defend and preserve its own life, you are guilty of a legal monstrosity without a parallel. You will defend yourself and claim the right to do so. If you are attacked in the dark, are you going to stop and consider how hard you can hit with your fist, how deep you can cut with your knife, how many holes you can blow with your Derringer or your revolver, and under what law or statute you can defend yourself? No, you will defend yourself with what and all the means you have at command. and if you take the life of your opponent,

reasonably believing your own life was in danger, then you will be held guiltless.

Now how is it with Maryland? Is it worth while to say that there has been an assault upon our government; that hostile cannon and all the enginery of war has been aimed at the existence of your government? That is history; that requires no argument; and who will tell me that the government is tied down to try by court and jury all who are thus assailing it? If there are those who are attempting to take the life of government, then I say let the law of self-defence leave the government at liberty to take the lives, if necessary, of those assailing it.

Now as to the trial by jury in certain cases. In my official connection with some of the courts I have seen enough of that, even where it has been attempted to be resorted to, to show me conclusively its insufficiency. Suppose a party to be brought in, indicted under our own Maryland statutes, as I have seen them in more cases than one, with the facts as clear as the sun in heaven. Yet it is a well known fact that the majority sympathize with the act, and if out of the sympathy comes a verdict of not guilty, notwithstanding the facts are clear as I have said, does it not demonstrate beyond the shadow of a doubt, the utter insufficiency of this trial by jury in times of war, and in districts of country that are infested with this political heresy? I have seen it; I have had to go to the bench, occupied by a gentleman than whom none better qualified for the seat lives in the State of Maryland, and say to him, Sir, this is a farce, and I will never take part in such another.

I want to put this idea before gentlemen. For your safety's sake, do not put a law upon your statute book which will be constantly and habitually violated and set at naught. For if you let men feel that they can disobey or violate one law, they will very soon take it into their heads that they can defy other laws and all laws. And if you catch them in the violation of some other law, they will point you, and consistently too, to the violation of the first law which they practiced and which you tolerated. I think no one loves the liberty of the citizen more than I do; no one will go farther to throw about individual liberty all the safeguards of which it is susceptible. I am willing to labor and spend and be spent in this service. But at this time, with so much of danger hanging over our country and its government, when this is a time in the history of mankind to decide whether a man is capable of self-government, no consideration on earth will move me to support any proposition which looks however remotely to a conflict with the supreme power in the land.

I am willing to admit that abuses have occurred here, as they have occurred everywhere. The world never has seen the time when abuses have not occurred. But I say, less are occurring this day, un er the circum

stances, than ever occurred elsewhere under similar circumstances. And therefore, for my part-let other gentlemen do as they please, let them look towards putting in the Constitution of the State any provision which may bring you and me in conflict with the Government of the United States and the government at Washington, let them do on that subject whatever they please for me, I never will agree to it. I love liberty, and I want to see it preserved, not only for us and for this nation and generation, but for all generations to come. I want to see it preserved, and I believe, as I believe in my existence, that the only hope for free government throughout the world is in the preservation of that form of government and that very government which our fathers left us.

Mr. CLARKE. I would not take up the time of the House in replying to the gentleman from Howard, (Mr. Sands, ) if he had continued his interrogatories and permitted me to reply to them as he put them. But, as he afterwards put several questions, it becomes necessary, being in the position I have taken upon this question, that I should occupy the time of the Convention for a very few moments. I do not propose to follow the gentleman through all the various positions he has assumed. As to the question of allegiance, the 4th article of this bill of rights will bring that question up, and I do not propose to give the gentleman now the benefit of knowing what I may choose to say when that article comes before the House. When it is legitimately before us, I think I shall at any rate be prepared to present my views upon it, without any prevarication, and in plain and distinct terms. And when those views are given, I humbly conceive they will do as much towards the preservation of the Constitution of the United States and the laws of Congress passed in pursuance thereof-following the words of the Constitution, and not, as the gentleman puts them, "under the Constitution". -as anything which may emanate from the gentleman from Howard, (Mr. Sands.)

Now, in reference to assuming a position of hostility to the Constitution of the United States, I will ask the gentleman this plain question: Does the simple insertion into the bill of rights of the State of Maryland of a provision which exists in the Constitution of the United States itself bring the government of the State of Maryland into conflic with the Government of the United States? If it does, then the Government of the United States must be in conflict with the Constitution of the United States.

Mr. SANDS. I will answer the gentleman's question, if he will allow me. Will he repeat it?

Mr. CLARKE. If the insertion into the Constitution of the State of Maryland of a provision copied from the Constitution of the United States, and which assigns the same

duties to the officers of the State of Maryland which the Constitution of the United States assigns to its officers, places the State of Maryland in conflict with the Government of the United States, then the Government of the United States must be in conflict with the Constitution of the United States.

Mr. SANDS. If my friend will ask me a question, instead of simply making an argument, I will try and answer it.

Mr. CLARKE. If a clause of the Constitution of the United States, inserted in the Constitution of the State of Maryland, puts the State of Maryland in conflict with the Government of the United States, does it not follow, logically, that the Government of the United States must be in conflict with the Constitution of the United States?

Mr. SANDS. My distinct opinion is, that nothing the government of the United States has done in this matter, is in conflict with the Constitution of the United States.

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Mr. SANDS. I understand the gentleman endorses the President so far as this was concerned.

him.

Mr. CLARKE. I do, in so far that I regard the course pursued by the military officers in Maryland at the last election, as a most inconsistent one to carry out their ends. And I do not know but I may endorse the President about some other things. The President is for compensated emancipation. Now if we must have emancipation here, I think it Mr. CLARKE. There the gentleman flies off ought to be compensated emancipation. I do the track. We are not discussing what the not know whether the gentleman endorses government has done, but whether the clause the President there or not. And I do not I propose to have inserted here is in conflict know whether, if Mr. Lincoln is renominated, with either the Constitution or the government and somebody else of the party is also nomiof the United States. I know of no gentle-nated, the gentleman will be found to support man who will undertake to say that the State of Maryland is in hostility to the Constitution of the United States or the laws of Congress passed in pursuance thereto. I recognize the distinction between the government as ad ministered, and the government as organized. And I will say this much for them, that it is not yet so clear, although the gentleman says a great deal about the government at Washington, if he means the administration there -it is not yet so clear that he is quite as close to it in the views which he holds and the ideas which he wishes carried out in the next four years, as we might suppose. I do not know to which party the gentleman belongs, whether he is a Lincoln man, a Chase man, or a Fremont man.

Mr. SANDS. I do not belong to any body. I am a freeman.

Mr. CLARKE. One of the gentleman's leaders in this State is said to be for Chase or Fiemont. I do not know which one it is.

Mr. SANDS. I do not think the gentleman does know.

Mr. CLARKE. At all events the future will show how close the gentleman stands to the government as admini-tered. I will say this: that the State of Maryland always has been, and is now, true to the Constitution of the United States, and the laws passed in pursuance thereof.

Mr. SANDS. I believe so, too.

Mr. CLARKE Now in regard to these arrests. The gentleman says it is very inconsistent to arrest men because they do not vote. I think so, too. too. And it was most astonishing to me how gentlemen should resort to such a mode for carrying out their scheme. And I

Mr. SANDS. I am for Old Abe. Mr. CLARKE. I do not want to vote for McClellan, for he arrested the Legislature of Maryland. I may have to vote for Mr. Lincoln myself as the best one among all the candidates which may be presented. A VOICE. Vote for Butler.

Mr. CLARKE. I would be willing to vote for Franklin Pierce, or for Seymour, of Connecticut, or some other peace man. The gentleman has called upon us here to sustain the administration in all that it wanted to do. Now, I will not pretend, at this stage of the discussion, to go into these matters. But I announce it here as my solemn and candid conviction, that if the resolution passed immediately succeeding the first battle of Bull Run-the Crittenden resolution, which was. adopted unanimously-had been adhered to in the posecution of this war, without dotting an "i" or crossing a "t," the stars and stripes ere this would have floated over a united and happy and glorious confederacyI believe that the departure from the spirit of that resolution and the views upon which the war has been waged have brought about all our troubles. Had the resolution been strictly adhered to, I believe every man's heart in the land would have throbbed louder and more free, and that the result would have been the restoration of the stars and stripes over this broad land. this broad land. No man can behold with a sadder heart the present progress of events, the war being carried on, as I humbly conceive, for the overthrow of the rights of the States and the rights of the people, tending, unless the hand of peace comes in to stop this

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