Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 7.
Frank Moore, Ed.

[306] their condition. You have not yet exercised this power, and therefore, according to your own constitutional thesis, your conclusion falls to the ground. It is one of the provisions of the Constitution, and of the very highest value, that no ex post facto law shall be passed, the meaning of which is, that no act which is not against the law when committed can be made criminal by subsequent legislation. But your claim is, that when the writ of habeas corpus is suspended, you may lawfully imprison and punish for the crimes of silence, of speech, and opinion. But as these are not offences against the known and established law of the land, the constitutional principle to which we now refer plainly requires that you should, before taking cognizance of such offences, make known the rule of action, in order that the people may be advised in due season, so as not to become liable to its penalties. Let us turn your attention to the most glaring and indefensible of all the assaults upon constitutional liberty, which have marked the history of your administration. No one has ever pretended that the writ of habeas corpus was suspended in the State of Ohio, where the arrest of a citizen at midnight, already referred to, was made, and he placed before a court-martial for trial and sentence, upon charges and specifications which admitted his innocence according to the existing laws of this country. Upon your own doctrine, then, can you hesitate to redress that monstrous wrong?

But, sir, we cannot acquiesce in your dogmas that arrests and imprisonment, without warrant or criminal accusation, in their nature lawless and arbitrary, opposed to the very letter of constitutional guarantees, can become in any sense rightful, by reason of a suspension of the writ of habeas corpus. We deny that the suspension of a single and peculiar remedy for such wrongs brings into existence new and unknown classes of offences, or new causes for depriving men of their liberty. It is one of the most material purposes of that writ to enlarge upon bail persons who, upon probable cause, are duly and illegally charged with some known crime, and a suspension of the writ was never asked for in England or in this country, except to prevent such enlargement when the supposed offence was against the safety of the government. In the year 1807, at the time of Burr's alleged conspiracy, a bill was passed in the Senate of the United States, suspending the writ of habeas corpus for a limited time in all cases where persons were charged on oath with treason, or other high crime or misdemeanor, endangering the peace or safety of the government. But your doctrine undisguisedly is, that a suspension of this writ justifies arrests without warrant, without oath, and even without suspicion of treason or other crime. Your doctrine denies the freedom of speech and of the press. It invades the sacred domain of opinion and discussion. It denounces the “ifs” and the “buts” of the English language, and even the refuge of silence is insecure.

We repeat, a suspense on the writ of habeas corpus merely dispenses with a single and peculiar remedy against an unlawful imprisonment; but if that remedy had never existed, the right to liberty would be the same, and every invasion of that right would be condemned not only by the Constitution, but by principles of far greater antiquity than the writ itself. Our common law is not at all indebted to this writ for its action of false imprisonment, and the action would remain to the citizen, if the writ were abolished for ever. Again, every man, when his life or liberty is threatened without the warrant of law, may lawfully resist, and if necessary in self-defence, may take the life of the aggressor. Moreover, the people of this country may demand the impeachment of the President himself for the exercise of arbitrary power. And when all these remedies shall prove inadequate for the protection of free institutions, there remains, in the last resort, the supreme right of revolution. You once announced this right with a latitude of expression which may well be considered dangerous in the present crisis of our national history. You said: “Any people, anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. Nor is this right confined to cases where the people of an existing government may choose to exercise it. Any portion of such people that can may revolutionize and make their own of so much of their territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority intermingled with 01 near about them, who may oppose their movements.” (Vol. 19, Congressional Globe, p. 94.) Such were your opinions, and you had a constitutional right to declare them. If a citizen now should utter sentiments far less dangerous in their tendency, your nearest military commander would consign him to a dungeon or to the tender mercies of a court-martial, and you would approve the proceeding.

In our deliberate judgment the Constitution is not open to the new interpretation suggested by your communication now before us. We think every part of that instrument is harmonious and consistent. The possible suspension of the writ of habeas corpus is consistent with freedom of speech and of the press. The suspension of that remedial process may prevent the enlargement of the accused traitor or conspirator until he shall be legally tried and convicted or acquitted; but in this we find no justification for arrest and imprisonment without warrant, without cause, without the accusation or suspicion of crime. It seems to us, moreover, too plain for argument that the sacred right of trial by jury, and in courts where the law of the land is the rule of decision, is a right which is never dormant, never suspended, in peaceful and loyal communities and States. Will you, Mr. President, maintain, that because the writ of habeas corpus may be in suspense, you can substitute soldiers and bayonets for the peaceful operation of the laws, military