shall pervert, or attempt to pervert, the same to a war of conquest and subjugation, or for the overthrowing or interfering with the rights or established institutions of any of the States, and to abolish slavery therein, or for the purpose of destroying or impairing the dignity, equality, or rights of any of the States, will be guilty of a flagrant breach of public faith and of a high crime against the Constitution and the Union. 5. Resolved, That whoever shall propose by Federal authority to extinguish any of the States of this Union, or to declare any of them extinguished, and to establish territorial governments within the same, will be guilty of a high crime against the Constitution and the

Union.

6. Resolved, That whoever shall affirm that it is competent for this House or any other authority to estabfish a dictatorship in the United States, thereby super seding or suspending the constitutional authorities of the Union, and shall proceed to make any move toward the declaring of a dictator, will be guilty of a high crime against the Constitution and the Union and public liberty.

The resolutions were laid on the table. Yeas, 79; nays, 50. On the same day, Mr. Morrill, of Vermont, offered the following resolution:

Resolved, That at no time since the commencement of the existing rebellion, have the forces and materials in the hands of the executive department of the Goverament been so ample and abundant for the speedy and triumphant termination of the war as at the present moment; and it is the duty of all loyal American citizens, regardless of minor differences of opinion, and especially the duty of every officer and soldier in the field, as well as the duty of every department of the Government the legislative branch included as a unit, to cordially and unitedly strike down the assassins, at once and forever, who have conspired to destroy our Constitution, our nationality, and that prosperity and freedom of which we are justly proud at home and abroad, and which we stand pledged to perpetuate forever.

This resolution was adopted by the following vote: Yeas, 105; nay, 1-W. J. Allen.

Subsequently, Mr. Cox, of Ohio, offered the following explanatory resolution:

Resolved, That the word "assassins," used in the reselution this day offered by the member from Vermont, [Mr. Morrill), is intended by this House to include all men, whether from the North or the South, who have been instrumental in producing the present war, and especially those in and out of Congress who have been guilty of flagrant breaches of the Constitution, and who are not in favor of the establishment of the Union as it was and the Constitution as it is.

This resolution was laid on the table. Yeas, 85; nays, 41.

In the Senate on the 8th of December, Mr. Saulsbury, of Delaware, offered the following

resolution:

Resolved, That the Secretary of War be, and he is hereby directed to inform the Senate whether Dr. John Laus and Whitely Meredith, or either of them, citizens of the State of Delaware, have been arrested and imprisoned in Fort Delaware; when they were arrested and so imprisoned; the charges against them; by whom made; by whose orders they were arrested and imprisoned; and that he communicate to the Senate all papers relating to their arrest and imprison

ment

Mr. Saulsbury, in calling for the consideration of the resolution, said: "These two gentlemen, one of whom resides in my own county, and the other not far off, in the adjoining county, are

known to me personally, and have been for a number of years; and as their friends do not know of any just cause why they should be imprisoned in Fort Delaware or elsewhere, I have felt it my duty to call for this information. I hope the Senate will not perceive any reason for refusing to comply with this request. If they are there properly, if they have been guilty of any attempt to subvert the Government, if they have acted traitorously in any respect, their friends do not know it; I do not know it, and I do not believe it. They have been in Fort Delaware now for some time, and neither themselves nor their friends have been apprised of any cause for their arrest, or of the reasons upon which the arrests were made."

Mr. Wilson, of Massachusetts, opposed the adoption of the resolution, saying: "I think the Senate of the United States ought not to be engaged during this brief session in calling upon the Government for this kind of information, or in arraigning the administrators of the Government. We have had some arrests made, and it is possible there may have been some mistakes made; but I believe that instead of the few hundred arrests we have had, we ought to have had several thousand, and that not one man in ten who ought to have been arrested, has been arrested. I know the Government of this country has forborne a great deal. Adopting this resolution at this time looks to me as a sort of arraignment of the Government of the country for making these arrests-arrests that have done much toward maintaining the just authority of this Government. Never since the dawn of creation has any Government menaced by insurrection or rebellion been so considerate, so forbearing, so just, so humane, so merciful. While spies and traitors are skulking around us, ready to destroy the life of the nation, I am unwilling to censure the Government of my country for protecting the nation menaced by assassins."

mistakes

Mr. Bayard, of Delaware, thus urged the resolution: "I always supposed that the great value of this Government consisted in the fact that it afforded, beyond all other Governments, the best guardianship to the liberty of the individual citizen. Sir, what is the state of things now? The honorable senator from Massachusetts tells us that, in his opinion, the Government have forborne; that some may have been made in making ar rests, but that they ought to have gone farther than they have gone. The question does not lie there. The question lies in the great principle that the liberty of the citizen ought to be protected against the Government, ex. cept by public judicial inquiry on facts prima facie established by affidavit in order to justify his incarceration, because incarceration is imprisonment, it is punishment. In no free Government can the citizen be arrested at the will of an officer-I do not care who the officer is, whether a Secretary of War or a Secretary of the Navy, or any subordinate to whom a Sec

retary chooses to delegate the power; and it is impossible to call the Government where such a power exists a free Government."

Mr. Doolittle, of Wisconsin, thus objected: "Mr. President, this complaint of the great oppression of this Government because, in time of war, men have been arrested under circumstances to raise suspicions of their loyalty, it seems to me is not very well founded, so long as the prison, door is open to all arrested upon suspicion only, if they will simply take the oath of allegiance and to support the Government. I think, sir, I am not misinformed in this respect. There has been some complaint, and with more reason, perhaps, made against the Government because it has been too lenient toward men who have been notoriously engaged, in sympathy and in act too, with the traitors against the Government; and the complaint has been, not because suspected parties have been arrested, but because the guilty have not been shot or hung; that the prison door has been opened too easily to many of these men."

Mr. Saulsbury, in further urging the adoption of the resolution, stated as follows: "We do hold that a State situated as we are, where there has never been any attempt to resist Federal authority, should have some consideration in the American Senate. But, sir, I tell the Senate that at our last general election armed soldiery were sent to every voting place in the two lower counties of the State of Delaware. I am informed that this soldiery consisted of men from New York, from Pennsylvania, and from Maryland. When I went to vote myself, I had to walk between drawn sabres in order to deposit my ballot. Peaceable, quiet citizens, saying not a word, on their way to the polls, and before they had got to the election ground, were arrested and dragged out of their wagons and carried away. Peaceable, quiet citizens were assaulted at the polls. I do not, however, propose to discuss these matters now; I may do so hereafter. I simply wish to call the attention of Senators to this fact, which distinguishes us from States that are in revolt: we have offered no resistance to Federal authority."

Mr. Bayard, in reply to Mr. Doolittle, said: "He tells us he thinks the Government has been too forbearing; that men ought not only to have been arrested and imprisoned, but that they ought to have been shot or hung. Shot or hung in this country without a trial? Shot or hung, according to the generality of his language, "for sympathy?" Is that the state of things throughout the United States? Is that what we are to expect to see established in this country-that sympathy is to be the ground on which a man is to be hung? You may charge sympathy on a man because he differs from you in opinion. Suppose a man believes that the restoration of the Govern ment of this country over the revolted States cannot be effected by war; the Administration

may say that is an evidence of sympathy with rebellion, and hang a man for that! That is the doctrine, as I understand it. It seems to me that there could not possibly be a form of Government more despotic in its characterand I might use a much stronger term-than a Government that would carry out such a principle as that in action."

Mr. Doolittle immediately rose to explain, saying: "I did not intend to be understood that men who are arrested should be either shot or hung without trial. If anything that I said led the gentleman from Delaware to suppose such was my meaning, I did not express myself as I intended. I simply say that the complaint against the Government is that they have not been either shot or hung. I ought to have said, perhaps, tried, shot, and hung."

Mr. Hale, of New Hampshire, thus expressed his views: "I have regretted the exercise of this power from first to last; but, sir, I will say that where the emergencies of the country are such, and the condition of things is such, as to justify a resort to extraordinary proceedings for the safety of the Government, I am willing that the Executive should act upon that old maxim, which, translated into plain English, is, "The safety of the republic is the supreme law." I confess, for myself, that nothing in the whole history of the war has so embarrassed me, has left me in such doubt what course to take and pursue, as questions of this character. I have as earnest a desire for the preservation of the Constitution in all its intregrity as anybody else; and it matters not to me whether victory or defeat attends our arms, if, when the war is over, it does not leave us a constitutional Government. We are at war for that, sir; and I hope we shall make every sacrifice that is necessary to sustain it. That being our object and our end and our aim, I would not now, while the enemy is in the field, and while the contingencies of battle are pending, and the issues of life or death are suspended upon the result, impede or hinder those who are charged with the execution of the laws by inquiries which are not vital to the Government. I do not look upon this as so, because I believe it is one that belongs to the judiciary to examine and settle; and if any body has made an attempt to apply that remedy and has failed, it will be time enough then to look to some ulterior course."

Mr. Bayard, of Delaware, in reply said: "The President of the United States-rightly or wrongly is immaterial; I am not going to enter into that discussion-has asserted the right to dispense with the law which requires the habeas corpus to be issued in any case of judicial arrest. He has claimed that right; he has exercised that right. He has openly, through the Secretary of War, issued a proclamation which virtually subverts this Government, if carried out in practice; because the Secretary of War is authorized to appoint an indefinite number of men, constituting a corps of provost

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 action; and they are to report to the central authority 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 prisoner at Fort Warren, the bayonet of the soldier prevents the service of the writ upon the military commandant who has possession of the prisoner. The judiciary, then, are powerless for redress; and under this asserted right on the part of the President, that feeblest department 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 expression of their opinion, if it be necessary, when the facts are returned to them, what protection has the citizen against the aggressions of executive power? Can a Government be a free Government, 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 unknown 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 Washington, who, from his position, may be supposed to have ability to exercise some discretion, 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 er parte return made in your absence, and without any power of investigation 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 executive. Sir, I consider that power a subversion of this Government. I consider it also unnecessary; and though the honorable senator says that while we are engaged in war he would not call for any account from the executive department for its actions, I submit there is a wide distinction there. I am asking nothing 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 othe Federal Government."

Mr. Sherman, of Ohio, expressed the follow, ing views on the arrests which had been made: "I say to my political friends that we cannot

afford these arrests; they should not be made except where the facts are so glaring that when they are stated to us here by the Secretary of War, every one of us will say he did right in making the arrest. We ought, in justice to ourselves and to our constituents, to demand of the Secretary of War a reason in every case for the arrest made. I have that confidence in the President of the United States, who I believe is thoroughly honest and patriotic, and who would deprive no man of his liberty without good cause, and I have that confidence 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 conditions 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 legislation 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 Congress ought to require that the person making the arrest should make a formal report to Congress, 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 illegal 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 allow 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.

"I hold that there is no authority vested by the Constitution of the United States in the President or any of his cabinet ministers to make these arrests; and whenever they exereise such a power it is an act of usurpation and an overthrow of the Constitution of the country. The Constitution defines what are the duties of the various departments of this Government. The duties of the executive are plainly marked out in the instrument. So it is with the legislative power; so it is with the judicial power. Upon each and every one of these distinct bodies of the magistracy are conferred separate and distinct powers which they can legitimately exercise; and whenever they go beyond the powers prescribed in the Constitution, they usurp an authority not given to them by the law, and deserve and should receive the honest censure of every loyal man in the country-I mean of every man loyal to the Constitution of the country.

"Now, sir, I ask senators who claim that the President and his cabinet ministers have exercised this power rightfully, to point me to the clause in the Constitution or the law that authorizes those officials to arrest a citizen, a civilian. The President, as commander-in-chief of the army and navy, may have the right, by virtue of the laws passed to regulate the army and navy, to make arrests of persons employed in land and naval service; but I ask senators to show the law that authorizes him to make an arrest of a citizen not connected with either service. Why, sir, even suppose the position of the senator from New Jersey were true, that the President has a right to suspend the writ of habeas corpus, does it necessarily follow, after that suspension, that he has a right to arrest whom he pleases? If so, I would not give a fig for the liberties of this people. If it be so, any President who is wicked enough and abandoned enough to do it, may, ad libitum, overthrow, the liberties of this country."

Mr. Fessenden, of Maine, rose to ask a question of the senator, saying: "My question is this: If he were at the head of the Government, and he were satisfied in his own mind that an individual, in a time like this, was about to commit a crime, the consequence of which would be exceedingly injurious to the Government itself, and would strengthen the arm of the rebellion, and there was no other way in which he could prevent it, would he not prevent it, would he not arrest the individual without law, and hold him by the strong hand, for the safety of the people?"

Mr. Powell, in reply said: "I will say to the senator, that if I were the President (which is not a supposable case) I would by no act violate the Constitution and laws of my country. If I thought that a man was about to do anything wrong, and there was a law of the land by which I could have him arrested and punished, or placed under bonds for good behavior, I would have the law executed. If there was no law to reach the case, and I

thought the man meditated very great injury, I think I would have a watch kept on him, and prevent his committing the act, and then, st the next session of Congress, I would recom mend the passage of a law for the punishment of just such an offence. I would adhere to the law."

Mr. Fessenden replied: "The senator forgets one clause of my question, and that is that there was no other way to prevent it."

Mr. Powell, in answering, said: "The sens tor is supposing a state of facts that could not exist."

Mr. Collamer, of Vermont, now rose to ask a question: "If a man cannot be unlawfully imprisoned while the habeas corpus is in force, when it is suspended may he not be imprisoned unlawfully?"

Mr. Powell in reply said: "If the writ of habeas corpus is suspended, the party may be held in prison either lawfully or unlawfully. If he is in prison, having been put there lawfully or unlawfully, the suspension of the writ of habeas corpus only denies him the great remedial process by which he is taken before the court, and the legality of his imprisonment inquired into by the court. That is all it does."

Mr. Collamer: "Does the gentleman wish to be understood that the habeas corpus can only be used for the purpose of inquiring whether the process was legal?"

Mr. Powell: "No, sir; it may be used to inquire whether he is rightfully deprived of his liberty; whether he is confined by virtue of legal process or not."

Mr. Collamer answered: "No, sir; questions of guilt or innocence are never tried on a writ of habeas corpus."

Mr. Powell continued: "In some classes of cases, the guilt or innocence may be inquired into. So far as the record shows guilt or innocence, it is a proper inquiry."

Mr. Collamer: "They require a jury."

Mr. Powell: "Upon a habeas corpus, the facts in the record which go to show the guilt or innocence of the party are before the court, and upon them they may decide whether he is rightfully or wrongfully imprisoned. If from the facts in the record it appears he is guilty, he is rightfully imprisoned; if innocent, he is wrongfully imprisoned, and is let go free. In the inquiry arising upon habeas corpus, the guilt or innocence of the party, to some extent in a certain class of cases, is necessarily looked into."

Mr. Collamer: "If a habeas corpus is brought to relieve a man charged with murder, does that habeas corpus enable the judge or court, before whom it is brought, to try in any way whether that man is guilty of the murder or not?"

Mr. Powell: "I am astonished that so good a lawyer as the senator from Vermont should ask such a question. We know that it is not the function of a judge, before whom a prisoner is brought on a writ of habeas corpus, to try

and pass judgment upon him. He can only be tried by a jury. The judge, however, on the return of the habeas corpus, inquires into the cause of the arrest, and if on all the facts that are developed in the record the presumptions are that he is guilty, the judge sends him back to confinement, and if it appears that he is innocent, he is allowed to go free. The judge may incidentally inquire into the facts in the class of cases to which I have alluded, though he does not do so for the purpose of inflicting punishment. But, Mr. President, I wish to ask the senator from Vermont a question, if he will allow me to do so. My question is, whether the legitimate suspension of the writ of habeas corpus authorizes the President of the United States to arrest and imprison a man? I wish the senator to answer that question, for that is the gist of the whole point I make."

Mr. Collamer in reply said: "I merely say, that the exercise of the power of the courts in the use and sustaining of a habeas corpus before them, is confined simply to the question of the process by which a man is holden; the legality of that process; and if the habeas corpus is suspended in relation to that subject matter, then the court has no control or jurisdiction over it."

Mr. Powell continued: "I differ from the senator, if he will allow me, about the definition he has given about the object of the writ of habeas corpus. He says the only object is to inquire whether the process under which the prisoner is held is legal or not. I am very well aware that, under the common law, the writ of habeas corpus was more circumscribed than it is in many of our States. It has been very much enlarged by statute. But I know that you have a right to a habeas corpus to bring persons before a court, to be released from unlawful confinement, when they are confined by no process whatever; and consequently, the senator is too limited in his explanation. There is a large class of persons, infants, for instance, who are held by others; there are persons held by certain societies of people the Shakers, for example-and writs of habeas corpus are allowed for such persons, though they are not held by virtue of any pro cess. The writ can be issued to bring a party before the court whenever he is restrained of his liberty, and the court is not limited to an inquiry as to the legality of the process, but inquires as to the right of the party to hold him."

Mr. Collamer replied: "The idea that a man may be holden without process is not contemplated by the law. The command of the writ is to bring the body of A B and the cause of his confinement. That is the cum causa, the great writ. It is not the habeas corpus ad sat isfaciendum that we are talking about, but the habeas corpus cum causa, and the command of the writ is to bring the body, with the cause of confinement."

Mr. Powell: "That shows clearly that the question is not always whether the process is legal or not, because persons may be held without process."

Mr. Collamer: "By the word 'process,' I mean not merely technical process, but the instrument, the authority by which a person is holden, let it be what it may; and that authority is the thing to be looked into, and that only."

Mr. Powell: "Still, my excellent friend does not answer my question. I should like any senator to get up here and show me the au thority of the President, or any of his cabinet ministers, to make arrests. That is the point to which I wish to direct attention, and I ask the country to look right to that point."

Mr. Morrill, of Maine, opposed the resolu tion, saying: "We are informed in this resolution-I think substantially, although it does not take that form in terms that certain persons in Delaware have been arrested by the commander-in-chief of your army and navy, and have been restrained of their liberty. That is the charge substantially.

"Well, sir, what of it? It is said that it is extraordinary and tyrannical. Well, that depends upon what? Why, they say it is so be cause it is without shadow of law. That is a question to be examined; that is a question to be considered. But I repeat, what of it? Is it extraordinary that such things should occur in a time of civil war, in a time of gigantic rebellion, when a million of armed men are arrayed on the side of the supremacy of the Constitution and the laws; when as many more stand for the overthrow of this Constitution, and against the supremacy of the laws; when one half of your Confederacy is in rebellion against your authority, and armed rebels confront you, and denounce your authority and defy it, and when we know that those rebels have allies throughout the whole country, that traitors infest every portion of your country in sympathy and alliance with rebels under arms? I say, sir, that when such a state of affairs is evident, showing that the whole country is involved in civil war, not partial, affecting a few interests; not local, confined to a few places; but general, extending to the utmost confines of the republic, involving every interest, and reaching to every fireside in the land, making our condition one of war, a state of general intestine strife and commotion, affecting the liberty and the rights of every man, woman, and child in the nation, and making our condition to-day, instead of one of peace, one of war, gen