CHAP. V.]

BILL TO SUSPEND HABEAS CORPUS.

195

nificance of Burr's force, when mustered at the mouth of the Cumberland, was not yet known at the capital. The members were fired by an apparent attempt, coming from the judiciary itself, to prevent the confinement of men charged with a dangerous violation of the laws. Giles, J. Q. Adams, and Smith, of Maryland, a Committee of the Senate, almost immediately reported a bill suspending the operation of the writ of habeas corpus for three months, in cases of arrest for treason, or for other acts endangering the peace or the neutrality of the United States. The usual three readings were unanimously dispensed with; and the bill unanimously passed the same day, and was sent down as a confidential proceeding to the House.

66

But the sudden panic subsided before action took place in the latter body, though the interval was but three days. On receiving the Senate's bill, communicated "in confidence," a motion that the message and bill received from the Senate ought not to be kept secret, and that the doors be now opened," passedyeas one hundred and twenty-three, nays three. Eppes, the President's son-in-law, immediately moved that the bill be rejected. In his speech on the subject he said:

"Is there a man present who believes, on this statement, that the public safety requires a suspension of the habeas corpus? This Government has now been in operation thirty years; during this whole period, our political charter, whatever it may have sustained, has never been suspended. Never, under this Government, has personal liberty been held at the will of a single individual. Shall we, in the full tide of prosperity, possessed of the confidence of the nation, with a revenue of fifteen millions of dollars, and six hundred thousand freemen, able and ready to bear arms in defence of their country, believe its safety endangered by a collection of men which the militia of any one county in our country would be amply sufficient to subdue? Shall we, sir, suspend the chartered rights of the community for the suppression of a few desperadoes-of a small banditti already surrounded by your troops; pressed from above by your militia, met below by your regulars, and without a chance of escape but by abandoning their boats, and seeking safety in the woods? I consider the means at present in operation amply sufficient for the suppression of this combination. If additional means were necessary, I should be wil ling to vote as many additional bayonets as shall be necessary for every traitor. I cannot, however, bring myself to believe that this country is placed in such a dreadful situation as to authorize me to suspend the personal rights of the citizen, and to give him in lieu of a free Constitution the Executive will for his charter.

Believing that the public safety is not endangered, and that the discussion of this question is calculated to alarm the public mind at a time when no real danger exists, I shall vote for the rejection of the bill in its present stage."

In this last remark we get the reason for the very unusual

proposition to vote down summarily a bill passed by another branch of Congress, without giving it the usual reference. Eppes' motion prevailed-yeas one hundred and thirteen, nays nineteen. Only two of the leading Republicans voted in the negative, Bidwell and Varnum, both of Massachusetts. Bidwell opposed the rejection of a bill at that stage; but Varnum went further, and declared that without such a law he apprehended that it would be found impracticable to trace the conspiracy to its source, and bring the offenders to justice. His fears proved prophetic; but few probably will consider the final escape of a handful of conspirators any counterbalancing evil to that which would have inured from the establishment of such a precedent in legislation.

An incidental circumstance occurred which doubtless aided in producing that strong revulsion of feeling from the Senate's action which was exhibited in the House of Representatives. On the evening of the 22d of January, Bollman and Swartwout, sent by Wilkinson from New Orleans in military custody, reached Washington. When, on a cooler examination of the President's message of the same day, it appeared that the highest accounts did not place the main division of Burr's flotilla which had descended the Ohio at above fifteen boats, containing three hundred men—or the other branch of it, which had descended the Cumberland, at above two boats-that the Executive did not consider these "fugitives" as threatening serious danger few made proper allowances for General Wilkinson's high-handed conduct. Not taking into account the misinformation under which he had acted, many believed he had been influenced by idle terrors. Others suspected him of exaggerating all the features of the conspiracy for the purpose of acquiring the greater reputation in putting it down. And there were not wanting those who asserted that whatever there was in the plot, he had been a full accomplice in it, until he judged it safer and more profitable to turn informer.

Bollman's and Swartwout's arrival was communicated to Congress on the 26th of January; and on the 28th, a letter from the commander of Fort Massic giving information that Burr had passed that post on the 31st of the preceding month with only about ten boats manned by six hands each, and "that three boats with ammunition were said to have been arrested by the militia at Louisville." The President also stated that the militia on the

CHAP. V.]

PRISONERS DISCHARGED BY A JUDGE.

197

Ohio would be able to prevent any further aids passing through that channel." Here was food for further reaction.

Bollman and Swartwout were brought before the Circuit Court in the District of Columbia, and committed for trial on the affidavit of Wilkinson, the testimony of Eaton, and the facts disclosed in the President's message. But the prisoners were brought before Chief Justice Marshall early in February, on a writ of habeas corpus, and discharged from custody on the ground that it was not made to appear that they had been connected with the commission of any overt act of treason.

The President's correspondence of the period speaks coolly of this affair. He wrote Nicholson (February 20th), that if the evidence should be found conclusive, these men could be arrested again, "if it should be worth while." He said their "crimes were defeated, and whether they should be punished or not belonged to another department, and was not the subject of even a wish on his part." He did not, however, concur in the Chief Justice's view of the law. He afterwards claimed that if that officer's decision was correct, and if such interference was proper before the executive officers of the Government could possibly gather the testimony concerning the particulars of a distant conspiracy, it was out of the question to attempt to prevent the enlargement of any detected traitor who was disposed either to fly, or to return to the execution of his designs.

On the 7th of February, Broom, the Federal member from Delaware, submitted the following resolution in the House of Representatives:

"Resolved, That it is expedient to make further provision, by law, for securing the privilege of the writ of habeas corpus, to persons in custody, under, or by color of, the authority of the United States."

The object of this proposition was apparent; and it drew out an animated and protracted debate. The Federalists professed to be deeply alarmed at the dangerous encroachments of executive power, and they painted in glowing colors the danger of military interference in the concerns of civil government. The Republicans ironically congratulated their opponents on their late conversion to these wholesome doctrines. Eppes, now fast rising to leadership in the House, declared that "the greatest monster in human shape was a tyrant in principle, with the

rights of man in his mouth-a wretch sunk to the last step in the political ladder, and willing again to mount by principles he never felt." He added:

'Where has this zeal of a certain party for the rights of man so long slumbered? Where was it when the sedition law was passed? Where was it when a member of this House was imprisoned and deprived of his constitutional privilege, for printing a letter from the Secretary of War, acknowledged to be genuine? Where was it when General Hamilton' was seized in the western parts of Pennsylvania, without the shadow of authority; driven like a convicted felon before the bayonet to Philadelphia, and there imprisoned for months without the possibility of obtaining a habeas corpus? Where was this zeal when the rights of aliens were suspended, that whole class of people placed under the will of the Executive, and a power given by law to seize and ship them? Dead, sir! The rights of man were not much in fashion with the party at that time. Plots, clues to conspiracies, and a gag for the mouth of him who dared to arraign the Federal immaculacy, were then the order of the day. When I shall believe the sympathy which these men affect to feel for a character so recently hunted through the community by them like a wolf, is sincere, I may then credit their attachment to human rights, and not till then.

"The real secret in this business is, that the termination of this affair in the western country does not suit the Federal palate. To reduce an insurrection without an army or navy, is a very anti-Federal thing. They do not understand, and cannot admire that kind of energy in government which derives its force from confidence and attachment on the part of the people."

Broom's resolution was indefinitely postponed, February 19th, by a vote of sixty to fifty-eight. Many Republicans, like T. M. Randolph, W. A. Burwell, and other equally devoted friends of the President, voted in the negative. They were not in favor of the resolution, but preferred a different mode of disposing of it.

On the third day of the session, the portion of the President's message alluding to the prohibition of the African slave-trade had been referred to a select committee of seven. They reported a very stringent bill, prohibiting the importation of slaves. Numerous amendments were offered, and the debate was long and occasionally violent. An amendment which was adopted, placing various restrictions on the coastwise transportation of slaves (from one American State into another) gave offence to many of the friends of the original bill, and caused them to vote against it in the shape in which it finally passed. But on the naked question of preventing the foreign importation, the senti

We take it for granted that this name is misprinted, or rather that something is omitted showing who were seized, etc.

CHAP. V.]

NAVAL DEFENCES-GUNBOATS, ETC.

199

ment of the House appears to have been nearly unanimous. The final vote exhibited no distinctly drawn sectional or political lines of division.'

On the subject of the recommended naval defences, there were three parties in the House-those in favor of a navythose in favor of harbor fortifications-and those who wished to combine a system of defence consisting of fortifications and gunboats. The first plan found its advocates from maritime districts; the second from exposed cities on the seaboard; the third from the interior. The two first parties united against the President's plan of gunboats. Early in February, a debate on the latter topic resulted in a call on the President for such information as he possessed, tending to establish the efficacy of this kind of force. He replied on the 10th, in a communication, which presents a clear view of his proposed combined system of land-batteries and gunboats. In regard to the circumstances. under which he recommended it, the following will probably be new to many persons. He said:

"On this subject professional men were consulted as far as we had opportunity. General Wilkinson, and the late General Gates, gave their opinions in writing, in favor of the system, as will be seen by their letters now communicated. The higher officers of the navy gave the same opinions in separate conferences, as their presence at the seat of Government offered occasions of consulting them, and no difference of judgment appeared on the subject. Those of Commodore Barron and Captain Tingey, now here, are recently furnished in writing, and transmitted herewith to the legislature."

The House, by a vote of sixty-eight to thirty-six, appro priated $150,000 for building thirty gunboats. The Senate struck out this clause in the bill-leaving the money to be appropriated at the President's discretion in land defences-and returned the bill to the House on the last day of the session. The House probably had the choice of concurring or defeating the entire bill, and it concurred by the following remarkably meagre vote, yeas thirty-nine, nays thirty-six.

Of the select committee who unanimously reported the original stringent nonimportation bill, but one voted for the amended bill on its final passage. The final vote took place February 26th, and stood yeas sixty-three, nays forty-nine. The local classification was, so far as our memory serves us, as follows: New Hampshire, yeas two, nays. two; Vermont, yeas two, nays two; Connecticut, yeas three, nays one; New York, yeas. nine, nays six; Maryland, yeas four, nays four; North Carolina, yeas four, nays five; Kentucky, yeas one, nays two; Virginia, yeas one, the rest nays; South Carolina and: Georgia all nays; Pennsylvania, Massachusetts, New Jersey, Tennessee, and Rhode Island, all yeas. Prominent men of both parties voted on each side of the question,