Year: 1863

thing when the peril OF his government is
discussed, cannot be misunderstood. II
not hindered (of course by arrest he is
sure to help the enemy. and much more
if he talks ambiguously, talks for his
country with butts and IFS, and 'ands.' j
You also tell US that the arrests complain
ed Of have not been made "for the treason
defined in the Constitution" nor ''for any
capital or otherwise infamous crimes, nor
were the proceedings following in con-
stitutionAl or legal sense criminal prose-
cutions." The very ground, then, of your
justification is, that the victims of arbi-
trary arrest were obedient to every law,
were guiltless Of any known and defined
ottense, and therefore were without the
! protection Of the Constitution. The sus'
pension of the writ Of habeas corpus in
stead Of being intended to prevent the
enlargement of arrested criminals until q
| legal trial and conviction can be had, is
designed. according to your doctrine, to
subject innocent men to your supreme
will and pleasure. Silence itself is pun
/ ishablc, according to this extraordinary
theory, and still more so the expression Of
opinions, however loyal, if attended with
criticism upon the policy of the govern
ment. We wust respectfully refuse our
assent to this theory Of constitutional law.
We think that men may be rightfully ST.
/ lent if they so choose, while clamorous
and needy patriots proclaim the praises Of
those who WELD power and as TO the
"butS," the lis" and the "and," these
are Saxon words and belong to the vocab-
ulary Of freemen.


We have already said that the intuition
Of free people, instantly rejects these
dangerous and unheard Of doctrines. 1t
is not our purpose to enter upon an elab'
crate and extended refutation of them. -
We submit to you, however, one or two
considerations, in the hope that you will
review the subject with the earnest atten-
tion which its supreme importance de-
mands We say, then, we are not aware
that the writ of habeaS corpus is now suS-
pended in any of the peaceful and loyal
States Of the Union. An act of Congress
approved by you on the Sd of March, 1868,
authorized the President to suspend it
during the present rebellion. That the
suspension is Legislative, and not an cx-
ecutive act, has been held in every Judi
cal decision ever made in this country,
and we think it cannot be delegated ia
/ any other branch of the Government
But passing over that consideration, you
have not exercised the power which Con
grc,s attempted to confer upon you, and
the writ is not suspended in any part p
the country where the ciyi! laws are il
force. Now, inasmuch as your doctrine
OF the arbitrary arrest and Imprisonment
Of innocent men, in admitted violation o
express constitutional guarantees, is en-
trcly derived from a suspension Of the
habeaS corpus, the first step to be taken
in the ascent to absolute power, ought tc
be to make it known to the people that the
writ is in fact suspended, to the end that
/ they may know what is their condition
You have not yet exercised this power,
and therefore, according to your own con
stltutional thesis, your conclusion falls u
the ground. 1t is one Of the provisions o
the Constitution, and Of the very highest
value, that no cX post facto law shall bC
passed, the meaning Of which is, that nc
act which is not against the law wher
committed can be made criminal by sub
sequcnt legislation. But your claim is
that wen the writ of habcas corpus il
suspended you may lawfully imprison and
punish for the crimes Of silence, of speech
and opinion. But as these are not ofenses
against the known and established law o
the land, the constitutional principle tc
which we now refer, plainly requires that
you should, before taking cognizance Of
such ofirnscS, make known the rule of ac
ton, in order that the people may be ad
vised in due season, 50 as not to become
liable to its penalties. let us turn yOul
attention to the most glaring and indefen
Sible OF all the assaultSupo constitutions
liberty, which have marked the history o
your Administration No one has evel
pretended that the writ of habeas corpus
was suspended in the State Of Ohio, where
i the arrest Of citizen at midnight, already
referred to, was made, and he placed be
fore a court martial for trial and sentence
upon charges and specifications which ad
mitted his innocence according to the eX
listing laws of this country. Upon YOU
own doctrine, then, can you hesitate tC
redress that mOnStrOuS wrong?


But, sir, we cannot acquiescc in YOU
dogmaS that arrests and Imprisonment
without warrant or criminal accusation
in their nature laWleSs and arbitrary, op
posed to the very letter of constitutions
guarantees, can become in any sense right
full, by reason of a suspension Of the wri
of habeas corpus. We deny that the sus
pension of single and peculiar remedy
for such wrongs brings into existence new
and unknown classes of offrnSeS, or new
causes for dcpriving men of their liberty
1t is one of the most material purposes o
that writ to enlarge upon bail, person
who, upon probable cause, are duly ant
illegally charged with some known crime
and suspension of the writ was neve
asked for in England or in this country
except to prevent such enlargement wher
the supposed otfense was against the safe
ty Of the government. In the year 1907
at the time of Bur,'s alleged conspiracy
a bill was passed in the Senate Of the Uni
ted States, suSpending the writ of habea
corpus for limited time in all eases wher
persons were charged on oath with trea
son or other high crime or miSdemeanor
endangering the peace or safety of tn
government. But your doctrine undis
guiscdly is, that suspension of this wri
justities arrests without warrant, withOu
oath, and even without suspicion of trea
son or other crime. Your doctrine denic
the freedom of speech and of the press
1t invades the sacred domain of opinion
and discussion. 1t denounces the ifs
and the butts of the English Language
and even the refuge of silence is insecure


We repeat,a suspense on the writ Of ha
beas corpus merely dispeuses with sir
gle and peculiar remedy against unlaw
ful imprisonment; but if that remedy ha
never existed, the right to liberty woul
be the same, and every invasion of tina