Tuesday, June 25, 2013

"and this in derogation of a right expressly guarantied to the citizen by the letter of the constitution"

   "Mr. Loomis reviewed the circumstances connected with the recent disturbances upon the Canada frontier, and contended that they were of a peculiar character. There was a long line of frontier, separating the two countries from each other, yet placing so narrow a barrier between them as to render it impossible that local disturbances breaking out on one side of that line should not spread to the other. The inhabitants of the American side were peculiarly sensitive on this point. Their native love of liberty, and deep-rooted hatred of tyranny, were inflamed, very naturally, whenever an appeal was made to those noble principles. Thus it happened that they were very easily led to take a deep interest, if not an active part, in those struggles. Abstractedly taken, he would do nothing to check or discourage that holy principle or to extinguish the bright spark of liberty which burns in the heart of every true American citizen. Yet something, he must remember, was due to national right and national obligation; and for the preservation of these, too, he would do every thing possible; but he insisted upon it that that should be according to the well-established principles of law.

   "He deemed the bill inefficient to answer the end it professes to reach. What did it it propose to do? To give to United States marshals, deputy marshals, and other officers power to seize, without process of law or any other limitation than own individual discretion, any vessel, or vehicle, suspected of being used for the purpose of bearing arms or munitions of war into the conterminous country, to aid in its civil contests, and to detain them until satisfactory surety should be given that they should not be used. Suppose the officer in whom this extraordinary power was rested, to have exercised his discretion, and, in execution of his power, to have seized the property of a citizen: what does the latter do? The bonds are fixed; it may be assumed, fairly fixed; the surety is found, and the party proceeds on his way over the line into the adjoining country, in the very face and eyes of the officers of government. Who is to prevent this? Nothing in this law gives power of prevention to any body. What becomes of the bond? It is in the hands of one of these officers; perhaps it may, by good fortune, have been put into the hands of a district attorney. How is he to know whether the obligation has been violated--the bond broken? How is he to prove that these arms or munitions of war, or whatever else had been seized and given up upon the bond, have been used in the manner designated? Does his jurisdiction extend to the only place where facts can be ascertained--beyond the line?

   "There is another objection to the bill. It vests dangerous and unusual powers in the officers of government. This feature was one which stamped the bill as unconstitutional, and against the whole policy of our laws. It gives to the executive vast discretionary powers, unparalelled by any ever proposed before to be vested in that branch of the government. The officer is not only empowered to seize, but to hold the articles designated. Who is to judge of their value. For it is upon an estimate of their value that the terms of the bond are to be predicated. The same individual who seizes them! And he may fix that value at nothing, so as to expedite the passage of the person whose property has been seized out of the country; or he may make it so exorbitant as to be oppressive, and to amount to a forfeiture of the whole. What was to prevent any one of these officers from stopping a citizen riding in his carriage upon the frontier,--ay, in this very city! and saying "I arrest this carriage as a vehicle contemplated by this bill?" The presumption is, that the officer will do but his simple duty; but the law throws a strong temptation in the way of the officer to do otherwise.

   "But this bill proposes not only a violation of private rights, but a gross violation of the constitution. By it any officer may seize the arms of another , at discretion; and this in derogation of a right expressly guarantied to the citizen by the letter of the constitution.

   "Again, the constitution guaranties to the citizen perfect freedom from arrest without due process law. [See the 4th amendment of the constitution.] And this bill proposes to vest arbitrary power in the hands of United States officers to violate this sacred right also. For, are not the seizure and detaining of arms, and the holding them over to bonds for their use, violations of the most manifest character of these rights. It could not be doubted.

   "By this bill, moreover, there was no liability of the officer, in case of wrong seizure or detention, as in all acts upon the statute book, in similar cases.

   "The only true way, Mr. L. contended, to accomplish the objects of the bill was to pursue precisely the same mode as that taken in other cases; as in that of arrests of persons, with their instruments and implements, suspected of intending to utter counterfeit money. The presence of the instruments proves the intention, though the act is not proved, and the statute imposes the penalty accordingly. But here, in this bill, the presence of the arms or munitions of war, or whatever else may be seized, does not prove an intention to commit a violation of any law; nor is it made unlawful for the citizen to do that, for the imputed intention of doing which he is held to give bonds, and to his person and property seized and detained. The bill is thus wanting in the first great principle of all penal acts. If the thing intended to be done be unlawful, the act should declare it, with a proper penalty affixed. It should declare (in order to carry out the recommendation of the president of the United States in relation to this subject) that such use of arms was unlawful, and that the person detained had arms, &c. with intention to use them unlawfully, and the person being arrested on that ground, would be arrested by a good legal process; and, what is more important, there would then be impending over him the personal fear of seizure to deter him from taking the overt step."--Mr. Arphaxed Loomis, U.S. Representative from New York, U.S. House of Representatives, Feb. 15, 1838. [NILES NATIONAL REGISTER--FEBRUARY 24, 1838--CONGRESS, FROM SEPTEMBER, 1837, TO MARCH, 1836--VOL. LIII, OR, VOLUME XVII-- FIFTH SERIES. Pgs. 407-8.]  

(Loomis, April 9, 1798 - Sept. 15, 1885, was elected as a Democrat to the Twenty-fifth Congress. He also served as member of the New York State Assembly in 1841 and 1842. And as a member of the State constitutional convention in 1846. He served as member of the commission to revise, abridge, and simplify pleadings and proceedings in civil actions in 1847. And was again a member of the New York State Assembly in 1853 and 1854. As well as serving as delegate to the Democratic State conventions in 1861 and 1863.)

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