I Ia M 1 ^^H «w H (X'l^tcwx^^ I cv\ vm^ XjLcLl QhjlJLycMj, 1 1 ^^W'ttn^^ ^^^ u. Q)d PmB I B ■ Book "^ ^ — ^7 i ^^0 THE COPISTITUTiOM UPHELD AVIMD MAINTAiNED. SPEECH \/ HON. J AS. HARLAN, THli] U^ITEII> STATJae S,E3SrATJE, Ju thjB oenuU'j «very patriot i-everenoee tht (JoMtitutioii anu tiKi ih,<:vA itNeij wanton violation of either stirs his indignatioi.. Ae in Rome the vo;-.- of th« p«©ple was said to be the voice of QoA, so in tbie eonntry the law ia our only aov- e»«ign which all, from the President to th<; humblest among the toilius; ;./i]ii)D<5, maet iapE«itly obey. Whoever wantonly tramples the Oonetitution asid'li.^ !« ws under kie feet, is properly held \a be an enemy of the people, and at wai wiiH their dear- «6t interest Relying on this reverence for the law of the land, the rebels ot ih" South and iheir allies in the North, have sought to justify their treason, and seeare (j diversion >B favor of their wicked purposes, by denouncing the President as a esarper and tyrant, and his administration as unconstitutional So persistently hs v^ they por- sned this course, as to convince many honest and patriotic citizens of it^ truth. So ihat many of the President's warmest admirers, and consistent end ard'^.l friende of 4be Union, justify these supposed violations of the Constitution on th- ground of "military neoeseity," and the duty of the President to preserve the '^^ivemment. Kor will I dispute the potency of this defense of what would otherwi-? be the nn- lawful act of a nation or an individual For tke right to self-pres^-^r^atjon ig the first law of nations as well as of nature. This principle underlies every national «»de, and every system of l^a) casuistry. None are so foolish as to Sr.siat that a •ation may not disregard its own laws to avoid destruction: and noo^. s- jept rebek «t©ep«d in crime could desire our Government to tamely submit to auu; dilation. But having carfully observed the administration of public affair? by Preaidfiot iJMoln, and as earfully examined the charges of vanooiwtitvitionhUty' preferred agaiut it, I fearksaly pronounce them groundless, \a% w txamiae for % few minmtee Bom« of th* grav«9t ef thcs* chari^es. .^ "*' ' 3AJ^,FpK AULITIA 1 Tlie rebeli South .ind Nortl/'denounced th. lir.l belligereat act of Pre»ideat LiicoSliloairfor Bou^e seventy-five thousand mil.t.a. ob untronst.tut.ooal and '^TntvettbeCoustitution provide, in ao many words that Congreee shall have ^"^'to provide for calling forth the militia to execute the laws of the Union, Bup . ^^"S^^ 3:l-^tST-isi^^of ' tK^Coititut.on, many vears before pr^deS^ it; fb.. Ue use of th^ militia )^^^^-^^:^, "^^X come necessary for the purposes "*^^^^„ ,^"f ^^^7;^,' .flar on fch. Gove^Lent "^^Z^^i:^ t^^^:^^:^:^^ hie oath . execute the law.^ made I he call for troops to assist him. » ^Thc copperhead* denounce the President for the " conscription " or -draft " of soldier, to Jill up '^'i'P^'^r^'t'J.Zt Table bodied male citi.^98 owe tlieit \ And yet none will senouBlj deny ^^^^^^^^^^^^^^^^^ aid in the enforcement of services to tlie republic when needed for its ^f ;*°'^;,^' ^/^^^g ^hgn the necessity itfilaws: and that if they do not voluntarily 'R "^ ^^^^/rTehTtLoerce the ser ari.e.. they may be --^?f'^^^-'''''i;''f't^J^^^^^ laws, all civil vices of iU citizen.^ to aid in the common defense and to. en ^^^ government would prove a tota failure. "«f.« ,'''^'7^. ^''^^ution of proce^, are ^halls, in every State in the Unuon -^en resisted m^^^^^^^^ ^^^ . ..^ .^ authorized by law to call "bv-stanJai-., al ''^ ^he^ leacli ur • ^^ declared to be a crime to ^f -• ^he -ams.U aid. bo^^^^^^^^ j^^^^^^. and must ever continue to be when ^.^^,^J^\*^;^^\"h'r['ht to require the aid of all or external foes. The proper oft.cers n^^^t liave the iigni . q ^^^^^^ scnption." president di- ^■^]"" ,Sfv^'^'>i.t.„^\\f '^^^^^^^^^ deliuuuent State, b^: thus filled, he .houl^ ^.^ ^'fet^^ S^°"^om i^ K tl e Co^sAutiou, la cai^ ;;^x^J;::^t:; i^:il,i4,>v^-o- of the const.tut.on, , 3 my denounce th.F.^derUforviolaHnpf.G^sUt^^ lad yetall kno.v that he^did nut ^y?,^^;''^Z%2 st.fh a >t will hardij be ing this to be done. Ana the power ^^ ^^^"^ J • ^,f„7Xve «ifed whioh decUu-es' quesuoned ufver reading the clause of ^''^^^^'^fj "''^t^'J^'^I^ Uere is no l^-nila. - ?hat " Congn..s .hall have power f° ^;!';l^'^i,7i;";°d 'r >Xw, a..d of any .-•atioaW Uon. The t. .ops raised may be black "^^''^''^'T.^J^^'w.^^^^es.or owneiB, o,>pren. ^ity; they .J he J^^-s or i^e.gners rmnoi.^^^^ ^^^^ ,^ J . , , tiees w m8-3t.r<= ; and so ui a;* ^^^^^^^.'u ' o ^U policy. O-lored tioo-.s w.ro tin- the volunae. . ,, . o^„,,f,r lohnaon once AttorneyvGeiicral Bu^.Vmll only mention m T* "';S ^"^^^ ^^^^^^ ^ot aMend • of thft.. of th.3 AdminiBlration-wno has ''^^^f *;;^"/i^ ^^'^p^;^^ on rtil ttoor .rf;tto>J6«.*t«.. supposed weakness, erifor,x» oy»r»i«H »»^d »n a speeon o at it its last session, 4 a ^^ '•**Mr. PveeiJeni, a word onwoniordonthiseubjeci btfore I leave it, 1 have had oocaeioa more than onee during tlie i-ession to say (ami that opinion 1 confidently entertain) that althoug-h by the Inwe of the Stales Africans are made property, they are also under the (Jonslitullon of the Un!l«, or to acquire property on riccount of the pa- rents treason. 6th. The Fresideut ie denounced for issuing a proclamation liberaticg the ularos of rebels within the rebellious districts. And pray why not? We have just seen that " Congress may declare the punish- ment of treason :" that in pursuance of this provision of the Constitution, Congress did declare that all traitors who should not lay'down their arnns by a time to be fised by the President) should forfeit all their property of " every kind," including sla7e propLitj-. The President had taken a solemn oath to take care that "this and and all other "laws should be faithfully executed." Within the rebellious districts this confiscation act could not be enfortied by the courts. But it was believed that if not impeded by the army and navy, it would to some extent execute itself, that many thou8an(^ti of the slaves if protected would abandon their rebel masters. And to secure this result the President issued his proclamation, declaring that within the rebel districts, all persons, iq^'espective of their former status, should be considered and treated by the United States Government as freemen; and requiring the ofli- cers of the army and navy to recognize their right to maintain their liberty- An^ if it is admitted to be right to punish rebels within our lines by the confiscation of their property, including slaves, pray can it be wrong to do the same thing beyond our lines so far as the effort cni\ be made effective ? It is objected, however, that the- proclamation if enforced would liberate the slaves of Union citizens as well as of rebels. And it is clear that the emaHcipatioa of slaves of Union citizens who had not aided the rebellion could not be justified, under the clause of the Constitution authoiizing Congress to declare the punishment of treaaob ; and to that extent the proclamation would be void, unless justified by the public .-iHceesities ; and in that case the parties thus losing slaves would have the samt right to just compensation as if other proper had been taken for a similar purpose. And this would be a question for the courts to adjudicate when the sir premacy oi the Constitution a,^/^ laws shall have been restored. 7. It is avered that the President violated the Constitution by snspc tiding th<' virii of habeas corpus. And yet the Constitution says : ' ' The priviledge of the writ of habeas corpus shill not be suapended, unless when in oaaes of rebellion or invasion the public safety may require it." (Oonstitntion Art. lat., eec. 9.) This is what 56 styled by lawyers a negative pregnant; and is equivalent to- saying that "The priviledge of the wrtt oi habeas corpus may be suspended when in cases of rebellion or invasion the public safety may require it." Aqd as a re- bellion does exist, the priviledge of the writ may be properly suspended if the pub- lic safety requires it. There can be no question of the right to suspend it : the only question that can arise, is, "who can judge of the necessity?" On this question ft large majority of tiie best legal mi«ds of the country who have expressed an opin- ion on thir point, conclude that the President is the proper party to exercise this judgment, as he is the Commander in-Chief of the Armies and Navies of thjs Repub- lic, and is at the same time the chief executive officer entrusted with the enforce- mtai of t^ie Uws. Others, iiowe-7ar, eoaclude t nai Congress should decide vrhcQ the pablic safuty re^airea its suspension. Hence, to silence cavil, Oongrees onact«d a law, formally directing its suspensioa, daring the continuance of the rebellion, ynenever, and wherever the President might find it necessary to secure the (?ii fflr^ement of the law*. And thif? oun;ht to be an end of the controversy. 8. The President is d«uounccd for violating the Constitution by the "arbitrary arrests" of suspected parties and offenders in cases not founded on "information" or ''indictment," — and for authorizing their imprisonment without a trial and con- vietion by a jury. These charges are usually viudictivc and malicious, and are m the first lustaace -altered for partizan effect, — and are doubtless repeated bj tlie shallow minded and anreflectiagOunder a belief that uo arbitrary- arrest is legal and constitutional Noting coulcNie farther from the truth. Any citizen has a perfect inherent right to an-est a criminal without process aiid to restrain him until ptocess can be secur- ed. And a'Jy citizen has a right without process to arrest a party to prevent the commission of crime, aud to restrain him until the danger has passed. This is done every day and evtry nighfin the great cities. Men are discovered apparently on the point of committing critne, as an assault and battery, a burglary, a robbery, or a murder, aud are seized and iucarcerated or otherwise restrained "of their liberty, to prevent the commission of the offence. In all such cases, even in times of pro- found peace, it is idle to insist that the arrest must be preceded by a formal "infor- formation" or "indictment," or that a "jury trial" must precede an irnpriaouraent. There would be no time for this — the delay' would be fatal: instant action is ne- eessary to prevent the crime. Such arrest? are therefore not only right— but ft re- fusal to make them would be a critne against societr. The President, when convinced that persons were about to commit treason — the gravest crime known to the laws, has caused their arrest and restraint' as in the case of Vallandighara, of Ohio; and Jones, of Iowa, until the danger had passed, when they have been set at libert}-. I am not iiere ULdertaking to justify any specific case of arrest made without process. Some of them may have been unnecessarr, and may have worked great personal hardship. The President may not have been correctly informed, and may have erred iii any given case. He could not be everywhere in person and must, necessarily rely on others for information. All I claim here h that he intended t» do right, and that in principle he had a perfect right to make iirreste without pro- cess to prevent the commission of crime. If not, why not? We have seen that a private citizen may do this— yea, more that it is his duty to do so— and a wrong akm to s. crime to refuse when he has the power May aot the President do what a private citizen may do to prevent the commission of offences! In^he case of an arbitrary arrest by a private citizen without' process, if the res- traint were to be protracted, the party could serve out a writ of habeas corpus, and secure his discharge by the judge of any court of competent jurisdiction. But if made by the President in times of 'invasion or insurrection" he could, if he deem- ed that the public safety required it, as we-have seen suspend the priveledge of thijj writ and retain the party in custody. If any doubt might otherwise exist on this point, it ought to be eettled in the minds o{ those who reverence the courts, by their decisions'in the case of the arrest and restraint of Vallandighara by Geueneral Burnsidee. While still in ciistody. ap- plication was'^made to .Judge Leavitt, of the United States Court for the Southern District of Ohio, for a writ x)f /inbta.s corpus. Vallandighara was fully heard in aa able and^exhaustive argument, delivered by his personal and political friend, ex-At- torney General of Ohio, George E. Pugh, who for six years was a representative of the Ohio Democracy in the United States Senate, and Judge Leavitt refused to issue the writ, This -was, in effect, deciding that the arrest was capstitutional; for no ot-her question could legitimately arise than the power of the President to make the arrest without process, and the constitutionality of the restraint. In applying for this writ the party must allege that he has been illegally arrested and restrained of his liberty, setting foith the pretended grounds of restraint, if known. When brought before the court or judge, according to the principles of the common law, the question of guilt or innocence is never tried. The legality of the restraint is the only question that can be put in issue. But the judge or court would not, of course, issue the writ and bring the party before the court for a hearing unless, ac- cording to his own showing, hi? arrest vvae illegal. As Judge* leavitt refu.sed the 6 writ, i- it, m effect, an affirmation of the legality of the restraint No/ oan this decision be juetly attributed to political bias. For this judge wrb appointed by President Jackeon, many years before the existence of the Republican party; and he has never been accused or euepected during hie long official career of the slight- est divergence from the line of judicial rectitude. An appeal was however taken in the Vallandighana ease to the Supreme Court of the Uniied States, in an application for a writ of certiorari, or an order on the Judge Advocate General to send the case to the Supreme Court for re hearing. This appli- cation WBB refused after a full hearing in open court In other worda, the decision of Judge Leavitt was sustained by the Supreme Court ; and the question practically settled by the court of the last resort, that during a rebellion or invasion the Presi- dent may legally arrest suspected persons without process, and when in his opinion the public safety requires it, may suspend the right to the use of the writ of hnl>eat corpus, and retain them in custody until the danger has passed. This right is there- fore affirmed by4ivery department of the Government, by Congress, by the Presi- dent, and by the Courts. And finally the Copperhfad National Convention at Chi- cago has stultified all that Copperhead senators, and members, and newspapers, and stump speakers, have said in denunciation of "arbitrary arrests," by thf; nomination of Major General ilcClellan for the Presidency, after his " arbitrary arrest" of the members of the Maryland legislature. 9th. But, it is demanded, " why ar»i not the.-e parties put on trial il" "Admitting the necessity and legality of the arrests and restraint, surely they have a right to trial by a jury of their countrymen, and to be confronted with the witnesses who tesliy against Ihem." This is more specious than isound. In the c^ma of ai«rests made to prevent the commission of crime, how would it be possible to put the par:ios on trial? How could you try a party for an offense not committed? The utmost that could be demanded would be the release of the suspected parties, on giving bond and satis- factory security to keep the peace. And this has been done in every case where, in the opinion of the President, it was compatible with the public safety. But put- ting a party under bonds is but another mode of restraint substituted for impviaon- ment. It is the same in principle. The rigLt to do the former involves the right to do the latter. lu cases of arrest, alter the commir^sion of the crime, what authority has the Pres- ident to try, condemn and punish, the offenders? The ConstitutitJip says: "No person shall be held to answer for a CHpital or otherwise infamous crime, unless on a pre- sentment or indictment of a grand jury, except in cases arising in the land or naval forces, or In the militia, whtu in actual service in time of war or public danger." — (Article 5, Amendments to the Uonstitutlon ) Hence, the President and all his Cabinet, the Congress, and all the Courta com- bined, have not the constitutional power to put a man on trial for an allegeacrime, except in the nature of a preliminary examination Tor the purpose of eliciting facta to justify restraint of the suspected party. This can be done only by a grand jury. The President has the constitutional right to arrest and restrain during the continu- ance of the rebellion any offender, or person about to commit a crime, so long as the public safety may require it. To deny this right is to deny the validity of the Con- stitution. But he has no rjght to try in the judicial sense, or to convict, condemn, or punish, any one; this is the province of the jury, the 'court, and the sheriff. Nor-has the President put on trial, in thp judicial sense, or punished any one not m the Iftnd or naval forces. When restrained»»f their liberty by placing them under guard, or within the walls of fortifications, the confinement was not in the nature of punishment' nor considered or intended to be considered* infamous. Tli*y would be liable afterward as much as before such restraint to indictment and punishment by the civil authorities. ^ , It.foUows, therefore, that the Pre8i(3ent has proceeded as far as he hre the right under the Constitution,, and not one hairs-breadth farther. The " Copperheads con- demn him as a violater of the Constitution, for doing what the Consliuilion clearly authorises; and condemn him for not'doing what the Constitution aa clearly pro- hibits." . • . . • But it is needltss to pursue this subject All these cavils and chargoj of nncon- gti'uiiomi!ity are as empty as the wind. They are without a decent pretext. They all vanish under a candid, impariiiil, analysis. JSo one can careruHy; esinnne them and avoid the conclusion thai the measures of tbd existing Adminiatration are id strict uccoi dance with the Conalitnlion and lawa T L therefore, coaelude with the declaration that, m my opmion, a more pm-e- ainded dlainterest&d, eelf-eaorificmg, generoas, humane, patnotic, laborjoue, and Ood-faaring man never adininistered the affaire of a great nation than Abraham Lincoln. And that no living man, whoee name has been mentioned m that oonnec- tion, oould be more safely trusted in the presidential office for the next four years. And that no one more richly deserves the second office in the gift of the AmenoftB people than Andkhw Johi«ok, of Tenneeaee. And that if all who beheve ae I do perform their duty resolutely and faithfuHy, their triumphant election w ft« oertain as tho eaooession of day and night. FBESIDEimAL CAMPAIGN OF 1864 ONION CONSRBSSIONAL COMMITTEE. ^T ^A^'- ^?or^f.^' "Jt^^"^ ^'"■^- I ^^'"'- ^- ^- WASHIJUUKE, of Ulinoia - V ^i ^'X^^'^fl ''^}^^- " ^ f" VAN VALKENBUKCr. N, Y. L,k. MORRILL, of Maine. , •< J. A, GARFIELD, of Ohio. (*^«^"»^'' j " J. 0. BLAINE:, of Maine, w IN ...Av,-, .^ , I {Ilouae oj RepreHent'itives.) E. D. MOkOAI^J. C'Aa,r/;ia/.. JAhf. HARLAN, Trta^nrer. I). N. COOLHLY, ^Ssc'.rf. CoMMiriWE Roorng, Washington, D. 6'., S