at large to help on their cause. Or if as has happened the Executive should suspend the writ without ruinous waste of time instances of arresting innocent persons might occur, as are always likely to occur in such cases, and then a clamor could be raised in regard to this which might be at least of some service to the insurgent cause. It needed no very keen perception to discover this part of the enemy's programme so soon as by open hostilities their machinery was fairly put in motion. Yet thoroughly imbued with a reverence for the guaranteed rights of individuals I was slow to adopt the strong measures which by degrees I have been forced to regard as being within the exceptions of the Constitution and as indispensable to the public safety. Nothing is better known to history than that courts of justice are utterly incompetent to such cases. Civil courts are organized chiefly for the trials of individuals, or at most a few individuals acting in concert, and this in quiet times and on charges of crimes well defined in the law. Even in times of peace bands of horse thieves and robbers frequently grow too numerous and powerful for ordinary courts of justice. But what comparison in numbers have such bauds ever borne to the insurgent sympathizers even in many of the loyal States? Again a jury frequently has at least one member more ready to hang the panel than to hang the traitor. And yet again he who dissuades one man from volunteering or induces one soldier to desert weakens the Union cause as much as he who kills a Union soldier in battle. Yet this dissuasion or inducement may be so conducted as to bo no defined crime of which any civil court would take cognizance. Ours is a case of rebellion-so-called by the resolutions before me; in fact a clear, flagrant, and gigantic case of rebellion; and the provision of the Constitution that "the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it" is the provision which specially applies to our present case. This provision plainly attests the understanding of those who made the Constitution that ordinary courts of justice are inadequate to "cases of rebellion"-attests their purpose that in such cases men may be held in custody whom the courts acting under ordinary rules would discharge. Habeas corpus does not discharge men who are proved to be guility of defined crime, and its suspension is allowed by the Constitution on purpose that men may be arrested and held who cannot be proved to be guilty of defined crime, "when in cases of rebellion or invasion the public safety may require it." This is precisely our present case-a case of rebellion, wherein the public safety does require the suspension. Indeed arrests by process of courts and arrests in cases of rebellion do not proceed altogether upon the same basis. The former is directed at the small percentage of ordinary and continuous perpetration of crime, while the latter is directed at sudden and extensive uprisings against the Government, which at most will succeed or fail in no great length of time. In the latter case arrests are made not so much for what has been done as for what probably would be done. The latter is more for the preventive and less for the vindictive than the former. In such cases the purposes of men are much more easily understood than in cases of ordinary crime. The man who stands by and says nothing when the peril of his Government is discussed cannot be misunderstood. If not hindered he is sure to help the enemy; much more, if he talks ambiguously talks for his country with "buts" and "ifs" and "ands." Of how little value the constitutional provisions I have quoted will be rendered if arrests shall never be made until defined crimes shall have been committed may be illustrated by a few notable examples. General John C. Breckinridge, General Robert E. Lee, General Joseph E. Johnston, General John B. Magruder, General William Preston, General Simon B. Buckner, and Commodore Franklin Buchanan, now occupying the very highest places in the rebel war service, were all within the power of the Government since the rebellion began and were nearly as well known to be traitors then as now. Unquestionably if we had seized and held them the insurgent cause would be much weaker. But no one of them had then committed any crime defined in the law. Every one of them if arrested would have been discharged on habeas corpus were the writ allowed to operate. In view of these and similar cases I think the time not unlikely to come when I shall be blamed for having made too few arrests rather than too many. By the third resolution the meeting indicates their opinion that military arrests may be constitutional in localities where rebellion actually exists, but that such arrests are unconstitutional in localities where rebellion or insurrection does not actually exist. They insist that such arrests shall not be made "outside of the lines of necessary military occupation and the scenes of insurrection." Inasmuch, however, as the Constitution itself makes no such distinction I am unable to believe that there is any such constitutional distinction. I concede that the class of arrests complained of can be constitutional only when in cases of rebellion or invasion the public safety may require them, and I insist that in such cases they are constitutional wherever the public safety requires them, as well in places to which they may prevent the rebellion extending as in those where it may be already prevailing; as well where they may restrain mischievous interference with the raising and supplying of armies to suppress the rebellion as where the rebellion may actually be; as well where they may restrain the enticing men out of the army as where they would prevent mutiny in the army; equally constitutional at all places where they will conduce to the public safety as against the dangers of rebellion or invasion. Take the peculiar case mentioned by the meeting. It is asserted int substance that Mr. Vallandigham was by a military commander seized and tried "for no other reason than words addressed to a public meeting in criticism of the course of the Administration and in condemnation of the military orders of the general." Now if there be no mistake about this, if this assertion is the truth and the whole truth, if there was no other reason for the arrest, then I concede that the arrest was wrong. But the arrest as I understand was made for a very different reason. Mr. Vallandigham avows his hostility to the war on the part of the Union, and his arrest was made because he was laboring with some effect to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it. He was not arrested because he was damaging the political prospects of the Administration or the personal interests of the commanding general, but because he was damaging the army upon the existence and vigor of which the life of the nation depends. He was warring upon the military and this gave the military constitutional jurisdiction to lay hands upon him. If Mr. Vallandigham was not damaging the military power of the country then his arrest was made on mistake of fact which I would be glad to correct on reasonably satisfactory evidence. I understand the meeting whose resolutions I am considering to be in favor of suppressing the rebellion by military force-by armies. Long experience has shown that armies cannot be maintained unless desertion shall be punished by the severe penalty of death. The case requires and the law and the Constitution sanction this punishment. Must I shoot a simple-minded soldier boy who deserts while I must not touch a hair of a wily agitator who induces him to desert? This is none the less injurious when effected by getting a father or brother or friend into a public meeting and there working upon his feelings till he is persuaded to write to the soldier boy that he is fighting in a bad cause, for the wicked Administration of a contemptible Government, too weak to arrest and punish him if he shall desert. I think that in such a case to silence the agitator and save the boy is not only constitutional but withal a great mercy. If I be wrong on this question of constitutional power my error lies in believing that certain proceedings are constitutional when in cases of rebellion or invasion the public safety requires them, which would not be constitutional when in the absence of rebellion or invasion the public safety does not require them; in other words, that the Constitution is not in its application in all respects the same in cases of rebellion or invasion involving the public safety, as it is in times of profound peace and public security. The Constitution itself makes the distinction, and I can no more be persuaded that the Government can constitutionally take no strong measures in time of rebellion because it can be shown that the same could not be lawfully taken in time of peace than I can be persuaded that a particular drug is not a good medicine for a sick man because it can be shown to not be good food for a well one. Nor am I able to appreciate the danger apprehended by the meeting that the American people will by means of military arrests during the rebellion lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and habeas corpus throughout the indefinite peaceful future which I trust lies before them any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life. In giving the resolutions that earnest consideration which you request of me I cannot overlook the fact that the meeting speaks as "Democrats." Nor can I with fall respect for their known intelligence and the fairly presumed deliberation with which they prepared their resolutions be permitted to suppose that this occurred by accident, or in any way other than that they preferred to designate themselves "Democrats" rather than "American citizens." In this time of national peril I would have preferred to meet you on a level, one step higher than any party platform, because I am sure that from such more elevated position we could do better battle for the country we all love than we possibly can from those lower ones where, from the force of habit, the prejudices of the past, and selfish hopes of the future we are sure to expend much of our ingenuity and strength in finding fault with and aiming blows at each other. But since you have denied me this I will yet be thankful for the country's sake that not all Democrats have done so. He on whose discretionary judgment Mr. Vallandigham was arrested and tried is a Democrat having no old party affinity with me; and the judge who rejected the constitutional views expressed in these resolutions by refusing to discharge Mr. Vallandigham on habeas corpus is a Democrat of better days than these, having received his judicial mantle at the hands of President Jackson. And still more, of all these Democrats who are nobly exposing their lives and shedding their blood on the battle-field I have learned that many approve the course taken with Mr. Vallandigham, while I have not heard of a single one condemning it. I cannot assert that there are none such. And the name of President Jackson recalls an instance of pertinent history. After the battle of New Orleans and while the fact that the treaty of peace had been concluded was well known in the city, but before official knowledge of it had arrived, General Jackson still maintained martial or military law. Now that it could be said the war was over the clamor against martial law which had existed from the very first grew more furious. Among other things a Mr. Louaillier published a denunciatory newspaper article. General Jackson arrested him. A lawyer by the name of Morel procured the U. S. judge (Hall) to order a writ of habeas corpus to relieve Mr. Louaillier. General Jackson arrested both the lawyer and the judge. A Mr. Hollander ventured to say of some part of the matter that "it was a dirty trick." General Jackson arrested him. When the officer undertook to serve the writ of habeas corpus General Jackson took it from him and sent him away with a copy. Holding the judge in custody a few days the general sent him beyond the limits of his encampment and set him at liberty with an order to remain till the ratification of peace should be regularly announced or until the British should have left the southern coast. A day or two more elapsed, the ratification of the treaty of peace was regularly announced, and the judge and the others were fully liberated. A few days more and the judge called General Jackson into court and fined him $1,000 for having arrested him and the others named. The general paid the fine, and there the matter rested for nearly thirty years, when Congress refunded principal and interest. The late Senator Douglas, then in the House of Representatives, took a leading part in the debates in which the constitutional question was much discussed. I am not prepared to show who the journals would show voted for the measure. It may be remarked: First, that we had the same Constitution then as now; secondly, that we then had a case of invasion, and now we have a case of rebellion; and, thirdly, that the permanent right of the people to public discussion, the liberty of speech and of the press, the trial by jury, the law of evidence and the habeas corpus suffered no detriment whatever by that conduct of General Jackson or its subsequent approval by the American Congress. And yet let me say that in my own discretion I do not know whether I would have ordered the arrest of Mr. Vallandigham. While I cannot shift the responsibility from myself I hold that as a general rule the commander in the field is the better judge of the necessity in any particular case. Of course I must practice a general directory, and revisory power in the matter. One of the resolutions expressed the opinion of the meeting that arbitrary arrests will have the effect to divide and distract those who should be united in suppressing the rebellion and I am specifically called on to discharge Mr. Vallandigham. I regard this as at least a fair appeal to me on the expediency of exercising a constitutional power which I think exists. In response to such appeal I have to say it gave me pain when I learned that Mr. Vallaudigham had been arrested—that is, I was pained that there should have seemed to be a necessity for arresting him-and that it will afford me great pleasure to discharge him as soon as I can by any means believe the public safety will not suffer by it. I further say that as the war progresses it appears to me opinion and action which were in great confusion at first take shape and fall into more regular channels so that the necessity for strong dealing with them gradually decreases. I have every reason to desire that it should cease altogether, and far from the least is my regard for the opinions and wishes of those who, like the meeting at Albany, declare their purpose to sustain the Government in every constitutional and lawful measure to suppress the rebellion. Still I must continue to do so much as may seem to be required by the public safety. A. LINCOLN. OFFICE COMMISSARY-GENERAL OF PRISONERS, NATHANIEL WILSON, Esq., Assistant District Attorney, Washington, D. C.: SIR: I am informed through the Navy Department that $175 in gold, U. S. notes, and Southern money taken from the Rev. J. P. B. Wilmer at the time of his arrest was placed in your hands by Commodore Harwood, U. S. Navy. You are aware that Reverend Mr. Wilmer was recently released and sent to Richmond. He now asks for the return of this money to him as his private property, and if it is consistent with what is proper in such cases to grant his request I respectfully desire that you will inclose the money to me to be forwarded through Lieutenant-Colonel Ludlow, agent for exchange of prisoners. It is usual to take from all prisoners any money in their possession at the time of their being placed in confinement and to return it to them when released, unless the amount is such as to show that it was intended for other than private uses. Very respectfully, your obedient servant, W. HOFFMAN, Colonel Third Infantry and Commissary-General of Prisoners. HEADQUARTERS MILITARY COMMANDER, Hon. F. H. PEIRPOINT, Governor of Virginia : SIR: During the excitement attending the late raid I shipped all the prisoners then in the Atheneum to Camp Chase. Among them were the hostages for Trahern, from Barbour County. They petition to be returned to Wheeling as their health is not so good at Camp Chase, one of the number, Samuel Elliott, having lately died. Shall I send for them? Very respectfully, JOS. DARR, JR., Major and Military Commander. [Indorsement.] I have no objection. There are two or three of them that may go home now; we have better hostages. Don't tell them this until I see who they are. F. H. P. OFFICE COMMISSARY-GENERAL OF PRISONERS, Lieut. Col. W. H. LUDLOW, Agent for Exchange of Prisoners, Fort Monroe, Va.: COLONEL: Your letter of the 10th is received.* Of course we are bound only by what you agree to, and that is why I wish to receive * See Vol. V, this series, p. 771. |