* [July 27th.


amendment on grounds like that, if the people of Massachusetts did not hiss at the whole of it at once, we are not worthy of having a Constitution at all. (Laughter.] They will do it; and I hold it to be a duty which I owe to my constituents, and to myself, as well as to the people of Massachusetts, to do everything in my power to prevent the execution of this abominable law; and any man who extends the powers of that law, I hold does me a personal injury, and offers me a personal affront, and I hold him responsible to me; and I shall never neglect an opportunity of resisting such an affront whenever it is offered.

Mr. DANA, for Manchester. The member for Wilbraham, in his very natural excitement, fearing the Union to be in danger, is not in so perfectly calm a state of mind as is desirable for the investigation of a question of law. This is a pure

question of law; and were it not that he is im• pressed by this feeling of great alarm, he would

see at once, that what I propose has no harm in it. The Revised Statutes have provided, since 1836, and the old law provided since 1822, that every person restrained of his liberty, by any other person or persons, may prosecute a writ of habeas corpus, according to the provisions of the statute. Now, if that does take a slave out of the custody of his master, we cannot help it; it is the law, and it must be enforced when necessity arises.

“Every person imprisoned in any common jail, or otherwise restrained of his liberty, by any officer or other person, except in the cases mentioned in the following section, may prosecute a writ of habeas corpus, according to the provisions of this chapter, to obtain relief from such imprisonment or restraint, if it shall prove to be unlawful.”

He shall "prosecute the writ” and “obtain relief,” if the restraint shall prove to be "unlawful.” Now, that is perfectly plain. He is entitled to his writ, and then, upon that writ, is to be determined the question of the lawfulness or unlawfulness of the detention or restraint. If the detention proves to be lawful, he is not relieved ; if unlawful, then he is relieved. I cannot see how any person can be afraid of such a law as that.

The second section describes persons who shall not, as a matter of right, be entitled to this writ; meaning, thereby, that all others, with these exceptions, shall be entitled to it as a matter of right. “ Every person," with certain exceptions, “may prosecute a writ of habeas corpus." And what are the exceptions : Persons convicted for treason or felony; persons convicted or in execution upon legal process, and persons committed on mesne process. These shall not have the writ as a matter of right, but the issuing of it shall be left to the discretion of the court. In these three classes of cases it is not proper that persons should be taken out of the custody of an officer upon the petition of every-body who asks for it, because they are in a public jail, in the custody of a public officer, and ordinarily in no peril. The court will hear the question upon petition before they will decide as to granting the writ. But all other persons, except these, shall have the writ as a matter of right. Why? Because they may not be in legal custody; and in such case they ought to be brought into court, and not held at the mercy of persons who may choose to detain them. That has always been the statute law of Massachusetts—that these three classes who are here

enumerated, shall not have this writ as a matter believe, that any objection is offered to y amendof right, but that all others shall.

ment. If on the return of the writ, it is decided Then, the statute says that application shall be that the master has a right to the slave, he will made to the court in writing, setting forth the get him; or if it is decided that the marshal name of the party for whose relief the writ is in- should detain him, he will, of course, have the tended, the place where the party is imprisoned, right to do so. This was the course pursued the pretence for the imprisonment or restraint, by Judge Woodbury, in the case of Sims. He and if there is any warrant or other process, a issued the writ, and heard the case on the return, copy is to be annexed, or evidence given that it with all parties before him. I cannot conceive has been demanded and refused; and finally, the any objection that there can be to the issuing of facts set forth in the complaint shall be verified the writ, unless it be that it prevents the chance by the oath of the person making the application. the claimant has of getting his man out of the

Then, the fourth section provides that the court State before a legal decision can be had. or magistrate, shall, without delay, award this I believe, Sir, that I am one of the last persons writ of habeas corpus." It does not say that they who will be accused of bringing forward radical may or may not issue this writ, as they please, measures in matters of law. On the contrary, I but that they “shall, without delay, award and

have maintained conservative measures in this issue a writ-of habeas corpus." My amendment, Convention to the extent my influence would therefore, does not differ from the Revised Statutes reach, and perhaps beyond it. On this point, I and the law, as it has been in operation since merely wish to place in the Constitution what is 1822. It simply proposes to put this matter into now, and always has been, the statute law. I dethe Constitution, where it cannot be changed by

sire to do this, because there is now a disposition the legislature, or evaded by the court. The writ on the part of the courts to assume the right of disis to be granted in all cases where there is not a

cretion in all cases. In the case of Thomas Sims, discretion specifically vested. At present, the dis- the supreme court said that they had discretion in cretion is limited to three classes of cases. The all cases on the petition. The hearing might legislature may, if it chooses, add to these classes occupy a day or two, or three, or even a week, all persons held under charge of being fugitive without ever getting the parties before them; and slaves, and relieve the mind of the gentleman for

hence, by the time that a decision was obtained, a Wilbraham. There is nothing to prevent the man might be a week's journey out of the State. legislature, if they please, from adding that class. I do not believe that the courts have a right to I saw a report of a case this morning, in a Penn- exercise such a discretion, and I want the Constisylvania paper, in which application was made for tution to say that they shall not exercise it, exthis writ, in behalf of a fugitive slave. The United cept in such cases as the legislature may specially States marshal, in whose custody the fugitive authorize. The gentleman for Wilbraham, (Mr. slave was, refused to deliver him up to the sheriff, Hallett,) in his zeal to prevent collision with the and the consequence was, that the marshal was United States, ought to recollect that' the same arrested. A return was then duly made to the privilege he is so zealous to give to the master in writ; and, upon a hearing of the case, the fugitive

favor of his slave, may do great wrong to many was remanded into the custody of the marshal. innocent persons, who ought to have the benefit The only question was, whether the hearing of that writ. There are other persons besides should be upon the writ, or without the writ. slaves who want the benefit of the writ of habeas The great security has always been, that it should corpus. And I beg gentlemen in their zeal for the be upon the writ; and the object, is that the court recovery of slaves, not to put into the hands of the may see the parties before them, that they may master a power which others may exercise to the - see the original process, and not be obliged to de- oppression of the weak. pend upon copies, or upon any man's word; and Mr. HALLETT, for Wibraham. The gentleabove all, that there may be no danger of the man for Manchester sometimes reminds me of party being spirited away before a decision. As the one idea concentrated so touchingly in the Judge Kane, in the Pennsylvania case said, he sentimental writings of Sterne, which describes could not trust to the word of the marshal, that an enthusiast looking through the door of a prison he would not carry the fugitive off beyond the grate, and seeing nothing but a slave with the jurisdiction of Pennsylvania. Now, if the court iron entering his soul. That gentleman, upon is first to give a hearing on petition, before the some subjects which he discusses, does the same, writ is granted, the respondent might, in the and can see nothing but the slave and the slavemean time, carry the man away, which he could holder. I trust my mind is a little broader than not do, the writ being granted, and the parties all that. I have not thought of that in connection in court. The great purpose of the writ of habeas with so great a personal right as the habeas corpus. corpus is not to have a decision of a court as to Mr. DANA. I ask the gentleman whether I whether a man may be carried off, but to prevent ever brought up the subject of the fugitive slave his being carried off until it is first determined law in debate, except in answer to him? whether he is in lawful custody. For a mere Mr. HALLETT. The gentleman has brought decision, any other action may do as well. The it up here in this proposition ; he brought it beparty is to be brought into court, so that he can- fore the Committee on the Bill of Rights, where not be carried away. You may issue an injunc- it was voted down; then he comes here and tion, to say that a man shall not carry another renews the issue. Now, Sir, it is not solely on the away; but what is the use of your injunction ground that this amendment may be designed to He may get beyond your jurisdiction. The writ obstruct the execution of the fugitive law that I of habeas corpus seizes all the parties, so that from oppose it, but because the gentleman in his zeal that moment no damage can be done until the to cover that case, is endangering the benefit of the question on the writ is decided.

writ of habeas corpus. It relates to all our laws, In these remarks, I have alluded to the case of a and to the personal rights of all citizens. Just fugitive slave; for it is in respect to them only, I examine it. The present provision in the Con

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stitution in regard to the writ of habeas corpus, have it. Why does the gentleman want to go most free, easy, cheap, expeditious, and ample is this :

farther than the Constitution and laws now go? manner," not at the discretion of a judge of the

The Constitution says this writ shall be enjoyed supreme court, but as a right-a declaration of “ The privilege and benefit of the writ of habeas

in the freest manner possible; and the legislature war upon the national government. He sees corpus shall be enjoyed in this Commonwealth in the most free, easy, cheap, expeditious and ample

says, it shall be granted as a matter of right in all war, strife, bloodshed, and disunion, looming up manner.”

cases, except in case of persons in prison for on the horizon of the future. Sir, the judges

felony, or held in execution upon civil process. of the supreme court may now exercise all the Can you add anything more to that? It “ shall The gentleman wants something else; but what powers this proposed constitutional amendment be enjoyed in the most free, most easy, most ex- else ought he to have? I have not opened this imposes; they may, they can, do all that the peditious, and most ample manner !” The gen- question here. I wanted to avoid raising it. I amendment of my friend for Manchester (Mr. tleman says that is not enough. He wants some- did not want a question upon a sectional matter Dana) imposes upon them, and yet the member thing more. But to get that more he puts this like this, to mingle in the discussions upon the

for Wilbraham is alarmed because the Constitugreat right at the mercy of a legislature. If he adoption of the new Constitution. I know those tion, if amended, will require the judges to do wants anything more than the Constitution now who want to defeat this Constitution, are very just what they all can lawfully do now. gives, of the freest and cheapest claim to this anxious to have some sectional or disunion matter I yield to no man, Mr. President, in love and writ in all cases, it seems to me that he can only incorporated into the Constitution, for they know devotion to that Union which binds together the want some provision by which, under color of its that they can then rally every friend of the Union sovereign States of this ever-extending, ever-adbeing an amendment to the common law right of against it. For that reason, I want to throw every- vancing republic. I love that Union for the habeas corpus, some law may be violated, or the thing aside of that character. I say, therefore, glories of the past, the renown and power of the State and the United States be brought in conflict. if you adopt this provision, you furnish the oppo- present, and the brilliant hopes of the future. I

Sir, instead of securing liberty, it may authorize nents of the Constitution with an argument which hope that every foot of the North American conany man, under color of this new habeas corpus, I do not wish to put into their hands. I trust tinent will be incorporated into this Union-into to take any man or woman out of their house or that we shall not, by our action, bring about this this cluster of bright constellations. I wish to bed, and drag them before a magistrate; or kid- conflict; or, at least, keep this matter by itself see freedom and free institutions for all, and nap them while on the way; or, by bribing the for a distinct, separate vote.

chains and fetters for none, follow the advancing officer who executes this writ, to be granted to Although gentlemen who have stood with me flag of the Union. But this morbid anxiety about anybody who asks for it. That is the practical upon a good many platforms, upon this subject, the Union, which is sustained by the stout hearts effect of requiring such a writ in all cases. What are silent now, and probably will be by their and strong arms of more than twenty millions does the gentleman intend by it? He is perfectly votes, yet I hold it to be quite as important now,

of American freemen, is supremely ridiculous frank upon that point. He intends by it to comas it was just before the presidential election, to

and absurd. Sir, this Union does not depend pel any judge to deliver a writ of habeas corpus preserve this Union. [Laughter.] Most of all is for its perpetuity upon the self-appointed Unionto any person who asks for it. Suppose a case in

it important to prevent a conflict between the savers, who, during the past three years have which a person is held by the United States mar- civil and criminal jurisdiction of the United

blurted into the ears of the country, their devotion shal under civil process. What would the gen- States and of the State. That is a grave subject,

to it. It lives in the hearts of twenty millions of tleman do? He goes to a judge of the State upon which no citizen, who has taken an oath to men, ever ready to defend it and preserve it. court and applies for a writ of habeas corpus. support the Constitution of the United States,

All of us here, Mr. President, appreciate the Why, says the judge, the marshal has got the man should suffer a smile to come over his coun- devotion to the Union, of the member for Wilfor debt, under legal process, and what is the use tenance; and if gentlemen will laugh at that, they

braham, (Mr. Hallett,) but none of us, I am sure, of issuing a habeas corpus ? Nevertheless, he will laugh at their own condemnation in the day

believe that even that gentleman has any fear for replies, I want the man here, I want to do some- of judgment.

the safety of that Union. Should the amendment thing for him, and must have a writ. The law, if I say upon this point, that the bare possibility of my friend for Manchester, (Mr. Dana,) be this provision prevails, can give the judge no of any provision creating a conflict between the adopted, I think the perilled Union will survive discretion, and he must issue the writ. Then United States and a State, is a matter of the the shock, and that even the member for Wilbracomes the conflict of State and United States offi

highest delicacy. I trust, Mr. President, without ham will sleep well of nights. His slumbers will cers. The party must be brought before the judge, reflecting upon the actions or motives of any one,

be undisturbed by war, bloodshed, and strife, if the marshal will allow it; and if the prisoner that we shall leave this subject where we find it ; growing out of the exercise of the right of the can be rescued on the way, very well. That may and not, under the mistaken idea of enlarging the

writ of habeas corpus. If I saw in the amendbe one object. Just so if the marshal has a pirate right of the writ of habeas corpus, in fact, restrict ment moved by the member for Manchester, in custody, and his comrades, or any class of it, by putting it in the hands of a party legisla- any danger—if I could see in it any tendency philanthropists, opposed to hanging, desire to ture, or allow it to be made an instrument of to bring on a conflict with the general governhave him rescued ; they go to a judge, and the tyranny and gross abuse, in the hands of any ment, I would vote against it. I am not one who judge must issue a writ of habeas corpus ; and, in man who may wish to seize the person of another would advocate anything that should lead to the meantime, the crew, or the sympathizers, are against his will, for a malicious, corrupt, or

bloodshed and conflict. But it seems to me that ready to rush to his rescue as soon as the marshal wicked design.

the right of the writ of habeas corpus, is one undertakes to bring him before the judge. The Mr. WILSON, of Natick. Mr. President: which should not be held at the discretion of the legal process goes for nothing, which holds any I am amazed at the extraordinary assertion of judges of the supreme court of Massachusetts, or person in custody, for this provision in the Con- the member for Wilbraham, (Mr. Hallett). That any other class of men. It should be the constistitution will supersede all existing statute law. assertion is this : that if the declaration is made tutional right which we can appeal to at all times I ask the gentleman one thing; the moment this in the Constitution of Massachusetts that the writ —which we may enjoy in the “ most free, cheap, . is adopted into the Constitution, what becomes of of habeas corpus is a writ of right, it is a declara- expeditious, and ample manner.” your statute law. It is repealed. Which is the tion of war upon the United States. Sir, this is Reference has been made to the recent case in higher law? The Constitution. If anything in certainly an extraordinary doctrine to avow in Pennsylvania. Last Saturday, Marshal Wynthe Constitution is in conflict with the State law, a Constitutional Convention in America. Magna koop was called upon on a writ of habeas corpus, the Constitution repeals that. This amendment, Charta recognizes the habeas corpus as a writ of issued by a judicial tribunal of that State, to therefore, will repeal that provision in the existing right. This is the American doctrine, incor- produce the body of a person in his custody as a law. To whom does that provision in the ex- porated into the Constitutions of the American fugitive slave-placed in his custody by the deisting law deny the right of the writ of habeas States. The Constitution of this State declares cision of Commissioner Ingraham, whose " alaccorpus ?

To persons in prison for felony, and that “the writ of habeas corpus shall be enjoyed rity” in the business of consigning persons persons in execution on civil process. The present in this Commonwealth in the most free, easy,

claimed as fugitive slaves to their claimants, has proposition is, that the writ shall no longer be cheap, expeditious, and ample manner.” Now, won for him an immortality of infamy. Marshal denied to them. And worse than that, the leg. the member for Wilbraham sees, in the annun- Wynkoop, whose conduct in this case meets the islature are to have control over this great writ of ciation of the doctrine- that the writ of habeas unqualified condemnation even of the conservapersonal right to make it anything they choose to corpus is a writ of right, to “ be enjoyed in the tive presses of Philadelphia, refused to obey the



[July 27th.


lously invoked. It will be difficult otherwise to account for their insertion.

Such, I think, is the legal attitude of the case, and such the intent of the statute. As I said before, I have no desire to discuss the principles on which the Sims case was disposed of, but simply to vindicate what I think was a just construction of the statute regulating the writ of habeas corpus. If the Convention shall deem it proper that the writ should isšue without scrutiny, at the will of the applicant, I should prefer a plain, distinct resolution to that effect, rather than the proposed amendments.

But so long as it is deemed wise that a party applying for the writ shall make some case, so that the court shall not be compelled to deal with frivolous applications, I think it would be better to let the law stand as it is.

Mr. FRENCH, of New Bedford, here obtained the floor.

Mr. DANA, for Manchester. If the gentleman from New Bedford will allow me a moment of his time, I should like to say a word in answer to the gentleman who has just taken his seat.

Mr. FRENCH. Certainly, I will yield a mo


He was arrested, and held in imprisonment until Monday, when he came into court and produced his prisoner; the individual produced was delivered up to the marshal, who held him on the certificate of the commissioner, under the fugitive slave act. There was no danger, difficulty, or conflict. No one felt any shock. The sensitive nerves of the members of the Union-Safety Committees were not affected. The Union moved on in harmony in its course.

This extra anxiety about the Union, is the merest political cant. The country is sick of it. The sad fate of the chiefs in this Union cry, of the past three years, must convince even the member for Wilbraham, that this sitting up with the Union does not pay expenses. It is to be hoped that this Union delusion will soon pass away; and that the especial guardians of the Union will soon discover that the American people can preserve and protect that Union which makes them one people, without the special aid of their officious interference.

Mr. BARTLETT, of Boston. I have no desire to treat this as a matter of political interest, arising out of any past occurrence in this Commonwealth, but purely as a question of law. As I listened to my friend for Manchester, (Mr. Dana,) I at first thought he was right, and he would have commanded my vote but for a little farther scrutiny. I think there is error in the first place, in the suggestion that the courts of the Commonwealth have assumed a discretion not warranted by the statute. If I could find a trace of that, either in the authorities or in the oral history of proceedings under this great writ of liberty, I would aid in amending the law. But the gentleman is wrong. No court of this Commonwealth, in regulating the granting of the writ of habeas corpus, has ever, so far as I can learn, departed from the statute. The solution of the supposed disregard of the law is, I think, to be found in this. The statute regulating the right to the writ of habeas corpus provides for classes of cases. It has enumerated three classes in which it is discretionary with the court to grant the writ or not. It has left, by just implication, all else without discretion. But, Sir, the law has wisely provided beyond that, that in cases where there is no discretion, some preliminary case is to be made, before the exercise of the judicial power can be called into action. The provision is set forth with clearness and distinctness in the third section of the chapter. By that section, before any writ can issue, the applicant must make out a case under oath, complying with certain requisitions, and among them, not simply that the party is restrained of his liberty, but he must set forth, according to his best knowledge and belief, the cause or pretence for that restraint, and if it be under legal process, must annex a copy if he

Mr. DANA. The legislature has said, that the application shall set forth four things. Now in the Sims case, those four things were set forth; first, the person by whom the party was imprisoned ; second, the cause or pretence of the imprisonment; third, it was said to be by process, and we annexed what we supposed to be a copy of the process, a copy which was handed to us—whether it was a precise copy we could not know-and then we verified it by oath. Now, here arises the question. We said, and I say now, that having complied with those four requisitions, we were entitled to our writ. The gentleman says, that though we complied with them, we were not entitled to it, unless the court considered that upon them we had made out a prima facie case of illegal restraint.

That is not so. And there our courts differ from the law and decision of other courts. The process, a copy of which we annexed, showed that our case did not come within the three classes of cases set forth as exceptions in the second section of the statute. The object of requiring the copy of the process to be annexed to the petition is, that the court may see whether the case comes within either of these classes of exceptions. If it does, they have a discretion. If not, they have not a discretion, but must issue the writ, and determine the lawfulness of the restraint upon the return to the writ. In the case of Sims, the process was clearly not within either of the exceptions.

Mr. BATES, of Plymouth. I rise to a question of order.. I believe the gentleman has occupied his fifteen minutes.

The PRESIDENT. The gentleman is talking upon the time of the gentleman from New Bedford, (Mr. French).

Mr. DANA. As the gentleman rises to a question of order, I will not pursue the subject farther.

Mr. FRENCH, of New Bedford. Mr. President: I am in favor of the amendment which has been proposed by the gentleman for Manchester, and for the reason that it asserts that this writ of habeas corpus shall be issued as of right; and had it been thus issued on former and proper occa

sions, when there was a necessity for it-when it was applied for in a legal manner

r—this amendment would probably not have been offered on the present occasion. But, Sir, in one of the most important cases that was ever tried in Massachusetts, or that can ever arise here—a case where the personal liberty, during life, of a human being was concerned—that writ was denied. And notwithstanding the high eulogies the gentleman for Manchester, (Mr: Dana,) and others, have passed upon the judges of the supreme court of this Commonwealth, I should like to ask the gentleman for Manchester, for my own information as well as for the information of the Convention, how those judges treated him on an occasion when he applied for a writ of habeas corpus in a case of personal liberty, or slavery for life?

Mr. DANA, for Manchester. I would rather not answer that question—but I will say one thing. I have never said that the supreme court of this State, in the trial of the Sims case, was as impartial as the lot of humanity will allow. I was understood very generally, I am informed, as having used that expression ; but what I said is this : that the law had done all it could do to make them as impartial as the lot of humanity will permit. As to the manner in which I was treated on that memorable occasion, I will not at present allude.

Mr. FRENCH. It is not at all strange to me that the gentleman declines to answer my inquiry. I will state another case, however. A very respectable attorney of this city (S. E. Sewall, Esq.) applied to one of the judges of the supreme court for a writ of habeas corpus, in the same case; but, Sir, without even deigning to reply to the applicant, that learned judge turned his back upon him and marched off—and that, too, in a case of personal liberty, or slavery during the poor man's natural life-the latter of which was assigned him in this land of the free. Under these circum. stances, I ask, ought we not to have in our Constitution a provision like that proposed in this amendment-that this writ shall be issued as a right? These are some of the reasons why I am in favor of it.

Talk about danger of a dissolution of the Union! Why, we were told upon the floor of the Senate of the United States, a long time ago, that the women and children down South will take care of that; and I am surprised that large, robust, healthy looking gentlemen should attempt to make speeches here in favor of saving the Union, when it can be so well taken care of by others. There is no danger about this matter at all ; and let me say that this amendment would never have been offered or required, had it not not been for these miserable tinkerers of the Union.

Sir, if the delegations from Massachusetts, which she sent to look after her interests at the capitol of our country from time to time, had stood up like men for the liberty our forefathers fought and bled for, we should not have had any talk about the danger of dissolution and secession, We were told here the other day, by the gentleman from Pittsfield, about the door of the capitol being slammed in the face of little Michigan, by the slave-holding power, when she applied for admission into the Union as a free State; and about the eloquent gentleman from Quincy, who stood up there and defended her rights; but where were the balance of the delegation from Massachusetts,


Now, as happened in the Sims case, and as will happen again, the alleged cause of the restraint was shown on the face of the application to be perfectly legal and justifiable. The party, in compliance with the prerequisites of the statute, exhibited a case which, if it were correctly stated, was beyond the power of the court to relieye; and those statute prerequisites were framed with the intent that the true condition of the facts, if known, should be early developed to the end that the authority and process of the Commonwealth should not be idly and frivo



[July 27th.

who should have supported that old man elo- suspended by the legislature except upon the So the yeas and nays were not ordered. quent ? As we were told this morning in regard most urgent and pressing occasions, and for a The question was then taken on the amendto another gentleman, upon another occasion, they limited time, not exceeding twelve months." ment submitted by the gentleman for Wilbrahad gone over to the enemy, and were assisting Now, Sir, neither the legislature nor the courts ham, (Mr. Hallett,) to the second resolve, and him in slamming the door, and holding it there, have any authority to touch the habeas corpus in upon a division-ayes, 37; noes, 176—it was too.

such a way as shall not make it the most free, decided in the negative. Sir, what has caused all the difficulty and easy, cheap, and to be enjoyed in the most ample The question recurred upon the final passage trouble which we have experienced, and which manner. And when you say that the legislature of the first, second, and third resolves, and being makes it necessary that we should adopt some shall have discretion in this matter, or when you taken, they were, without a division, agreed to. provision of this character for our own protection ? say that that body may prescribe the preliminaries The question then being upon the final passage It has been caused by the dough-faces of the Free in regard to it, you throw away all that is pro- of the fourth resolve, States, who have gone to Washington and crawled vided in the Constitution, and place the power in Mr. DAVIS, of Worcester, moved to strike out upon their bellies in the dust to conciliate the the hands of the legislature, from whose decision the words " and no powers shall ever be assumed slave-holders, and who assisted in the passage of there is no appeal. Suppose that the gentleman by the legislature that are not granted in this the fugitive slave law, that their darling (Webster) who represents Wilbraham, (Mr. Hallett,) and Constitution." So that if amended, the resolve might be made president of the United States. those who agree with him in opinion, should pre- will read, “This enumeration of rights shall not And, Sir, if the representatives from the Free vail in the councils of the State, and the legisla- impair others retained by the people." States had stood up in congress for their rights ture should pass an act that no writ of habeas Mr. DAVIS. I make this motion because I and the rights of humanity, like the old man elo- corpus should issue until the preliminaries were see no reason why we should prohibit the legisquent, we should have had no fugitive slave law, settled, and that the party in whose favor it was

lature, and not the executive and judicial departand no talk about it. Massachusetts alone was sued out should not be a fugitive slave. Does ments of government. I hope that the amendits godfather, and Massachusetts should be respon- the gentleman want the legislature to say that a ment will be adopted. sible for it. And since it exists, let us fix our mere transient person shall not have the right to

Mr. HALLETT. If that clause is stricken out, Bill of Rights and our Constitution in a way that a habeas corpus? And yet, this amendment pro

it is evident that the legislature may assume will hereafter guard our rights and secure liberty poses to let the legislature fix all the prelimina- powers not granted in the Constitution. for all our citizens.

ries. No, Sir; I prize that habeas corpus altogether Mr. SCHOULER, of Boston. This is the longThere is another amendment which ought to be too highly. I am no liberty trading politician ; I sought for resolution to which I have desired to submitted and adopted, touching trial by jury, and deal in no such capital, but I prize the habeas offer an amendment. And if it is in order, I now which would probably assist us on future occa- corpus as a matter of personal right. I do not move to strike out the whole resolve. It seems sions, upon this subject; but I am willing, if the want the legislature to have the power of fixing to me that some gentlemen, and particularly the present proposition is adopted, to let that pass for any preliminaries in regard to the habeas corpus, member for Wilbraham, (Mr. Hallett,) during a the present—that seems to be so well provided for but I want it just as the Constitution gives it to considerable part of this session, have been en

Let us take care of the future as well as us, as free, easy, cheap and expeditious as it can deavoring to legislate for the next twenty years the present; and, while here, let us put into the possibly be. The people, I am sure, have the to come, and to restrict the people, in their legisBill of Rights and the Constitution that which greatest confidence in it, as it at present stands, lative capacity, from making laws. This very will hereafter secure liberty to every man not and are ready to rely upon the judgment and forenoon we had an attempt, which I believe was guilty of crime who treads upon Massachusetts discretion of the courts for its proper use. The unsuccessful, to pass a resolution that the legissoil and breathes the free air of the Old Bay State. supreme court has never refused to issue a writ lature should never have the power to proclaim

Before I take my seat, I desire to allude to one of habeas corpus, unless it was manifest from the martial law. We have provided that the legislaother matter, intimately connected with this sub- circumstances of the case that they would be ture, to a certain extent, can never loan the State ject. I wish to bring to the notice of the Con- obliged, upon the appearance of the party before credit ; and numerous other attempts have been vention a humiliating fact. It has been the them, to return him instantly to the same party made to limit the power of the legislature, in its custom, from time immemorial, when a member in whose custody he was.

Under such circum- future action. Now, Sir, I am opposed to this of the Boston bar has been called to his long stances, of course, they would not issue the writ. whole system; I believe that the people of the home, to notice the event, and appropriate resolu- I desire, therefore, to retain the habeas corpus of year 1853 are wise, and intelligent, and that a tions have been passed—no matter what had been the Constitution just as it has ever existed, unin- great deal of wisdom is assembled within this his standing—by the bench as well as the bar; cumbered and unrestricted by the preliminaries hall; I am in favor of progression, but I do not but when that lamented son of Massachusetts which the legislature may see fit to make. I shall think we have reached the height of improve(Robert Rantoul, Jr.)—the philanthropist, states- vote against the amendment.

ment. We shall go on improving, day by day, man and patriot, who did what he could, in the Mr. ADAMS, of Lowell, demanded the preyi- and year by year; and I do not wish to have any trial of Sims, for his personal liberty and his ous question.

clause put into the Bill of Rights that will be, in natural rights-departed to his long home, the Mr. SCHOULER, of Boston. I hope that the all future time, held up to our vision, by men Boston bench and bar-of the latter of which he

demand for the previous question will not be sus- opposed to progress and reform. was a member—were as silent as the grave intained, at least, if it is intended to apply to the Now I cannot conceive what is the object or which he now rests. But, Sir, the time will come resolutions as a whole. I gave up my right to

intention of this resolution, except it be to enwhen justice will be done to him in that matter, the floor yesterday, and am willing to sit all day deavor to obtain, in a roundabout manner, that as well as to those who procured the passage of now, if I can be allowed to reach the resolution provision which we voted down the other daythe fugitive slave law; nor will those who applied to which I desire to submit an amendment. I that the State credit shall not be loaned except it in Massachusetts, and those who have been the have no objection to the previous question so far for internal improvement. The gentleman for immediate cause of the trouble and excitement as it applies to each particular resolution, but I Wilbraham attempted to make a provision that which has been experienced in this regard from hope it will not operate against the whole. the legislature should not have the power to act one end of the Free States to the other, be forgot- Mr. ADAMS. If my motion can be so modi- | in anything not expressly provided for in the ten-Union-savers and Southern dirt-eaters, in fied that the question can be taken on the adop- Constitution ; but I desire to have a discretionary particular, not excepted.

tion of the resolutions separately, I am willing power left in the hands of that body, for I feel Mr. LORD, of Salem. The only objection I that that course should be taken.

confident they will never violate it. I hope we have to the amendment which has been submit- The PRESIDENT. The motion of the gen- shall not set ourselves up as the masters of all ted to this resolve, is this : that in my judgment, it tleman can be so modified.

future legislatures, to say what they shall, and is a very serious restriction and limitation of the Mr. WALES, of Randolph, moved that when shall not do. "Sufficient unto the day is the habeas corpus. The Constitution, as I understand the question is taken, it be taken by yeas and evil thereof." it, provides that “ The privilege and benefit of the nays.

The legislatures which are to come after us writ of habeas corpus shall be enjoyed in this A division being called for—ayes, 45; noes, will exercise the discretion granted to them in a Commonwealth in the most free, easy, cheap, 214-one-fifth not voting in the affirmative, the proper manner; and I am therefore opposed, altoexpeditious and ample manner, and shall not be motion was not agreed to.

gether, to having this resolution adopted. I think

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and nays.

that, if adopted, it will result in evil, and be the The question being taken, upon a division- ter, we had better make provision for all past cause of many unpleasant discussions and con- ayes, 54; noes, 196, one-fifth voting in the af- as well as all future contracts. I should much flicting opinions as to the right of the legislature, firmative—the yeas and nays were ordered. prefer to adopt the resolution originally proposed, which if possible, ought to be avoided. I will not Mr. HALLETT. I understand the motion of for I believe this imprisonment for debt, where farther occupy the time of the Convention, but the gentleman from Northampton to be pending. there has been no intention of fraud, to be a relic. simply make the motion to strike out the whole The PRESIDENT. The yeas and nays are of a barbarous age, of which the sooner we rid of the fourth resolve.

upon the motion to lay the resolve upon the table. ourselves the better. I am willing to go as far as The PRESIDENT. The Chair would inform Mr. KEYES, for Abington. I move a recon- any one in this matter, for I believe that it is not the gentleman that his amendment is not in order

sideration of the vote by which the yeas and nays only an act of duty, but an act of justice and at this time. were ordered.

humanity which we owe to our fellow man. I Mr. STETSON, of Braintree. I do not intend The motion was agreed to.

shall, therefore, vote against the amendment. to occupy the time of the Convention. I rose The question then being taken on ordering the Mr. JENKS, of Boston. I would inquire of merely to say that if there is any one of these yeas and nays, it was decided in the negative. the Chair if it is in order to offer an amendment? resolves to which this body ought to give their The question recurred on the motion to lay the The PRESIDENT. It is not in order at this sanction, it is to the fourth resolve. I do not resolves upon the table, and being taken, the time, but the gentleman may be allowed to state think it is the object of this Convention to confer motion did not prevail.

it, if he desites, power upon the legislature, but to reserve those Mr. HALLETT. I wish merely to say in re- Mr. JENKS. I propose to substitute the folpowers which have been delegated by the Consti- gard to that amendment, that it seems to me lowing amendment, which, I think, will obviate tution, to be acted upon by the people. And, to be only half doing what we propose to do. the entire difficulty under which we labor :therefore, any restriction which will give them We have a perfect right to make provision conthe right to control matters which may arise in

No person shall be imprisoned in any case, cerning the process for collecting debts already

who is not declared by law to be a criminal, or the course of legislation, and which properly becontracted, as well as for those to be hereafter

dangerous to the public safety. long to them as sovereigns, ought to be adopted, contracted, and there is no vested right with which and no more should be delegated to the legisla- an exemption from a process of arrest and im- Mr. HUNTINGTON. I did not introduce ture than is absolutely necessary to carry on the prisonment can interfere. The courts have de- this amendment, by any means, from any hosgovernment. cided this matter.

tility to the proposition of the gentleman from Mr. MORTON, of Quincy, demanded the pre- Now, the question which we have before us, is Easthampton, (Mr. Strong,) for I have been in favious question.

whether we shall, or shall not, put into the Con- vor of the principle which he desires to establish, The demand for the previous question was sus- stitution, a clause which abolishes all imprison- for twenty years; and, I believe the first petition tained, and the main question ordered to be now ment for debt, except in cases of fraud—that is, ever presented to the legislature of Massachuput.

of an honest, unfortunate debtor? If we are to setts, praying for the abolishment of imprisonThe question being on the adoption of the do anything in regard to it, let us do it fairly and ment for debt, was drawn up by myself. Since amendment of the gentleman from Worcester, clearly ; let there be no half-way work about it, that time, my opinion has never changed; but I (Mr. Davis),

and let the only distinction be between an honest have on all occasions, whenever an opportunity Mr. BRIGGS, of Pittsfield, asked for the yeas and a fraudulent debtor.

has presented itself, advocated the principle to the

There is another reason why the exemption extent of my humble ability, though never with The yeas and nays were not ordered.

from imprisonment should embrace debts already any material success. I desire to see that princiThe question was then taken on the adoption of contracted. There are many persons now absent ple adopted in the State of Massachusetts, and it the amendment, and it was, upon a division, from the State because they have contracted debts is because of that desire that I introduced the ayes, 135 ; noes, 60-decided in the affirmative. which they have been unable to meet; and to amendment I did. It is my opinion, that if you

The question then recurred on the final pas- avoid the disgrace of the dungeon, they have been do not introduce some qualification like that sage of the fourth resolve, as amended, and a compelled to go to other parts of the world, in which I have proposed, you will array against the division being asked for, it was—by a vote of 116 order to preserve their personal freedom. There proposition a great number of persons who ayes, and 118 noes—decided in the negative. is no limitation which will allow a man to return,

hold debts in their hands-and expect at some So the resolution was rejected.

for though he may have been absent twenty time to be able to collect them-against men

years, yet, unless the debtor and creditor have who have absconded. There are persons to be Imprisonment for Debt.

been six years after the debt, in the same State, found in almost every village in the CommonThe next resolve was read, as follows:

the moment the debtor sets his foot within the wealth, who hold debts contracted under this

boundaries of the Commonwealth, he becomes law, who were aware that this remedy existed, Resolved, That the Bill of Rights be so amend

liable at any moment to be seized and imprisoned and might be applied. I do not say that it is uned that no person be imprisoned for debt, in this Commonwealth, except in those cases where fraud

for his former debt. Why will you retain such a constitutional to pass the resolution without such can be proved.

provision as this, and thus hold the whip over the an amendment to it, but I think that it would do

heads of the absent, who can never return to their great injustice to a certain class of citizens ; and I The question being upon its final passage, old homes? Another view presents itself. The foresee, that unless there is some qualification of Mr. MILLER, of Wareham, asked for the yeas stranger cannot come to Boston to trade, without this character, there will be but little probability

being subject to imprisonment, if he owes a debt that the proposition will be adopted by the people. The yeas and nays were not ordered.

here, or anywhere in the world, which he cannot These are the motives which induced me to subMr. HUNTINGTON, of Northampton. І

pay. What effect does this have upon the trade mit the amendment. move farther to amend this resolution, by insert- of Boston, Lowell, Lynn, &c. ? Why not make Mr. LORD, of Salem. I supposed from the ing after the word "debt,” the words “hereafter a clean thing of it, and say that hereafter there debate which took place yesterday afternoon, that contracted."

shall be no more imprisonment for honest debt, those who had influence in this Convention would Mr. ALLEN, of Worcester. I would suggest


the soil of Massachusetts, and allow every mature this proposition, and it was because of to the gentleman from Northampton, that it would man who is now absent from his family and some intimations to that effect, that I withdrew

be better to change the phraseology, so that it friends, to return home, and live in peace, or to the proposition I made at that time. Now, no will read that no debt contracted after the amend- come and visit the old homestead, or come and gentleman in this Convention is more opposed to ment shall go into operation, &c.

trade among us, without feeling that he is in dan- putting a man in jail for mere indebtedness, than Mr. HUNTINGTON. That was my inten- ger of being snapped up at any moment, and held I am ; and yet, you do not begin to remedy the tion, and I am willing, therefore, to accept the upon an affidavit. I hope that the amendment evil which exists, by adopting this resolution. modification. will not be adopted.

The real evil is a great deal deeper. What we Mr. DAVIS, of Plymouth, moved that the re- Mr. GRISWOLD, for Erving. I regret, Sir, want to say is, that no man shall imprison another solve be laid upon the table.

that the mover of the original resolution consent- by reason, and on account of any liability due Mr. SCHOULER, of Boston, asked for the ed to that amendment. It seems to me, that if from one to the other. To use the mere term yeas and nays upon that motion.

we intend to do anything in regard to this mat- "debt contracted” is to take but a very small class

and nays.

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