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Remarks on Habeas Corpus,
December 8, 1862, in Congress


    Mr. Stevens. I wish, then, to say a single word only. I am not going to discuss this bill, because that, perhaps, would not be fair. It was not my intention to ask to have this bill put upon its passage today; but I desired that it should be passed, so that it should not fail at this session of Congress. Hence it was that I asked it to be postponed until next Thursday, and to have it made a special order for that day. Gentleman who knew enough of the bill, I suppose, to oppose it, seemed unanimously determined that it should not be postponed and made the special order. I presume that every gentleman in this House knows the provisions of this bill, and that there was really no time necessary for them to examine it for the purpose of a correct understanding of it. Still, thinking as the gentleman from New York (Mr. Olin) did, that it would look better to have a few days to examine it, I tried to get that time, but was prevented. I have made up my mind, for one only, that this bill shall not fail through any such objection if there be a majority in this House ready to pass it. Hence it was that when I appealed to them to give this time for debate, and they refused, I asked the previous question, which I shall steadily adhere to.

    I will say only a single word in reference to this bill. I should not have said a word about it if I had not seen it misprinted in some papers. The bill, as printed in some papers, would seem to indemnify everybody who, during the time of the suspension declared by the President of the United States, had committed trespass in the name of the Government. The bill has no such absurd provision in it. It provides that the President and Cabinet, and all who, in pursuance of their authority, have made arrests during the time of the declared suspension, shall be indemnified and saved harmless. That is the full extent of the bill. It goes no further in any of its provisions, nor would I vote for it if it did.

    Mr. Thomas, of Massachusetts. Will the gentleman for Pennsylvania allow me to say a word?

    Mr. Stevens. Certainly.

    Mr. Thomas. For one, I do not object to a bill to indemnify the President of the United States; but this is not, if I understand it, (I have had no opportunity to examine it,) a bill of indemnity merely. A bill of indemnity is that which secures to an officer who may have, through mistake or otherwise, violated the law, and indemnity for that proceeding. It does not necessarily deprive a party of his civil remedy. If a man has been unjustly or illegally imprisoned – however long his imprisonment or grievous his injury – he is deprived by this bill of any remedy or redress whatever. He alone is to suffer, and not the Government. If the gentleman from Pennsylvania will put this bill in such a form as to indemnify officers acting under the direction of the President, still leaving parties to a civil remedy if they were illegally and without cause imprisoned, I could support it. I could not, without further opportunity for examination, vote for this.

    Mr. Cox, of Ohio. Will the gentleman from Pennsylvania yield to me for a moment?

    Mr. Stevens. Certainly.

    Mr. Cox. I made a motion a moment ago to have the bill referred to the Judiciary Committee. I think the suggestion made by the gentleman from Massachusetts, (Mr. Thomas,) as to the import of this bill, of so much importance that the bill ought to be amended. I think it would be proper for the gentleman to withdraw the call for the previous question, and, instead of passing the bill in this indecent haste – as it is confessed by members on the other side that we are now doing – have it sent to the Committee on the Judiciary, and have a judicial exposition of the principles contained in it.

    Mr. Stevens. I thank the gentleman for his advice –

    Mr. Cox. I do not pretend to advise the gentleman.

    Mr. Stevens. But I have been so provoked by the gentlemen on that side that I do not take their advice with any great kindness.

    Mr. Cox. Provoked, probably, by the action of the people at the last fall elections.

    Mr. Stevens. I therefore proceed, Mr. Speaker, to state what I intend to say, without any unkindness to anybody, but with the intention to have this bill passed, if the House, see fit to pass it.

    The gentleman from Massachusetts (Mr. Thomas) will find on examination – and I dare say that he has examined it – that I have drawn this bill precisely according to the English precedents; that I have used precisely the language used by all of the bills of indemnity for the last two centuries passed by the English Parliament, except that, in their bills, they have confessed the illegality of all of the acts which have been done and for which ministers have advised the passage of an indemnity. I have not confessed the illegality of these acts, for this reason: the Attorney General of the United States and the Administration have held that the President had, without such a bill, full power; and if he has the power to order all these acts, then there is no remedy for anybody. A remedy exists only where there is a wrong. If the President had the right to suspend the writ of habeas corpus, and under that these results took place, I should like to know who had the right of action against him? There can be no such thing. If there be a remedy for these false imprisonments it may extend to indictments as well as to civil suits, and how is the Government to indemnify the President for two years’ imprisonment in the penitentiary? What kind of indemnity is the Government to afford men thus prosecuted under these laws? But, sir, if the President was right in supposing that he had the authority to suspend the privilege of the writ of habeas corpus, I admit with my friend from New York (Mr. Olin) that there would be no necessity for this bill. But then it would do no harm, it would confer no additional power, it would do only what could be done before. But I have recited that there is doubt on that subject.

    Now, sir, I do not pretend to put my opinion in opposition to that of the Secretary of State, the Attorney General, and the Cabinet; but I do doubt the authority of the President of the United States to suspend the privilege of the writ of habeas corpus except when there is an absolute necessity for him to have that power, on an emergency when Congress is not in session. I hold that Congress is the sovereign power of this nation, not the President, and I have never been willing to yield to the idea –

    Mr. Allen, of Illinois. I hope that I will be allowed to ask the gentleman from Pennsylvania a single question. If this bill be postponed until Thursday next, will discussion be permitted alone to the friends of the measure and denied to those who may oppose it? I would like to have the question answered.

    Mr. Stevens. If it had been postponed until Thursday there was no intention to call for the previous question. The bill would have been opened to discussion by any gentleman who rose to discuss it; but we were not allowed that privilege. We were compelled to press it now or not at all, and I do not choose to put it within the power of the enemies of the bill and the enemies of the Administration. I therefore ask to go on with it now.

     But I was proceeding to say that I did not agree myself that the President of the United States has the right to suspend the writ of habeas corpus except until the meeting of Congress. Then it seems to me that we would have the right to give him that power. As there has been an illegal exercise of the power before, one arising from necessity, a bill of indemnity is the proper remedy which has been practicable for the Government where it was necessary for the Executive, for the safety of the country, to assume the responsibility of acts not contemplated by the Constitution. England has a constitution, just as we have. She has her Magna Carta and her statutes of treason. They provide for all these cases, as the Constitution of the United States does. And, as I have stated already to the distinguished gentleman from Massachusetts, (Mr. Thomas,) I have carefully copied this bill from the precedents of the English Parliament, the last of which was passed five years ago. I have not added a word except such as was necessary by the altered circumstances of the country. It is what has been done in the English Parliament for the last two centuries. Whether the Attorney General is right or I am right in regard to his power, if the President of the United States has the power, then this bill confers nothing additional, and can do no harm. If the President does not have the power, then it seems to me proper that he should receive it; and it seems to me proper that he should be indemnified for exercising it in a time of our extremest peril, when traitors were to be found in every household, North as well as South.

    I now, sir, demand the previous question.


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