[417]
“ Resolved, That the President do write to Congress to let them know that the Council has not time to attend to that business in the present alarming crisis, and that they were agreeably to the recommendation of Congress, at the moment the resolve was brought into Council, disposing of every thing for the departure of the prisoners.”
* * * * * * * *
As the recommendation of Congress of the 6th of September to give the prisoners a hearing was refused by the
Supreme Executive Council, the next minute made by Congress was as follows:
In Congress, 8th September, 1777.
“Resolved, That it would be improper for Congress to enter into a hearing of the remonstrants or other prisoners in the Mason's Lodge, they being inhabitants of Pennsylvania; and therefore, as the Council declines giving them a hearing for the reasons assigned in their letter to Congress, that it be recommended to said Council to order the immediate departure of such of said prisoners as yet refuse to swear or affirm allegiance to the State of Pennsylvania, to Staunton, in Virginia.”
The remonstrances made to Congress, and to the Supreme Executive Council being unavailing, the parties arrested were ordered to depart for Virginia on the 11th September, 1777, when, as their last resource, they applied under the laws of Pennsylvania, to be brought before the judicial courts by writs of habeas corpus.
The departure of the prisoners was committed to the care of Colonel Jacob Morgan, of Bucks County, and they were guarded by six of the light-horse, commanded by Alexander Nesbitt and Samuel Caldwell, who were to obey the despatches from the Board of War, of which General Horatio Gates was President, directed to the lieutenants of the counties through which the prisoners were to pass.
The writs of habeas corpus, on being presented to the Chief Justice, were marked by him, “ Allowed by Thomas McKean,” and they were served on the officers who had the prisononers in custody, when they had been taken on their journey as far as Reading, Pennsylvania, on the 14th day of September, but the officers refused to obey them.
It appears by the Journal of the Supreme Executive Council of the 16th of September, that Alexander Nesbitt, one of the officers, had previously obtained information about the writs, and made a report of them; when the Pennsylvania Legislature, at the instance of the Supreme Executive Council, passed a law, on the 16th of September, 1777, to suspend the habeas corpus act; and although it was an ex post facto law, as it related to their case, the Supreme Executive Council on that day ordered the same to be carried into effect.
Continuing the history of this case, we find that
The party consisted of twenty persons, of whom seventeen were members of the society of Friends.
They were ordered first to Staunton, then a frontier town in the western settlement of Virginia, but afterward to be detained at Winchester, where they were kept in partial confinement nearly eight months, without provision being made for their support; for the only reference to this was by a resolution of the Supreme Executive Council of Pennsylvania, dated April 8, 1778, as follows:
“Ordered, That the whole expenses of arresting and confining the prisoners sent to Virginia, the expenses of their journey, and all other incidental charges, be paid by the said prisoners.”
During the stay of the exiles at Winchester, nearly all of them suffered greatly from circumstances unavoidable in their situation — from anxiety, separation from their families, left un-protected in Philadelphia, then a besieged city, liable at any time to be starved out or taken by assault; while from sickness and exposure during the winter season, in accommodations entirely unsuitable for them, two of their number departed this life in the month of March, 1778.
Thus,
Mr. President, we find that the writ of habeas corpus was suspended by the authorities of
Pennsylvania during the Revolution, in the case of persons who were considered dangerous and inimical to the country.
A writ was taken out and served upon the officers, and they refused to surrender the prisoners, or even to give them a hearing.
If the
Senator from
Kentucky had desired an extreme case, and wished to make a display of his legal and historical information, it would have been very easy for him to have cited this case — much more aggravated, much more extravagant, much more striking, than the one in regard to which he was speaking.
Let it be remembered, also, that this case, although it seems to be an extravagant and striking one, occurred during the war of the Revolution, under
Gen. Washington, before we had a President.
We find that at that time the writ of habeas corpus was suspended, and twenty individuals were denied even the privilege of a hearing, because they were considered inimical and dangerous to the liberties of the country.
In the midst of the Revolution, when the writ of habeas corpus was as well understood as it is now, when they were familiar with its operation in
Great Britain, when they knew and understood all the rights and privileges it granted to the citizen, we find that the Legislature of Pennsylvania passed a law repealing the power to issue the writ of habeas corpus, and went back and relieved the officers who refused to obey the writs, and indemnified them from the operation of any wrong they might have done.
If the
Senator wanted a strong and striking case, one that would bear comment, why did he not go back to this case, that occurred in the Revolution, during the very period referred to by him?
But no; all these cases seem to have been forgotten, and the
