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by 11 Yeas (all Democrats) to 35 State militia into National forces,' and Nays: consisting of every Repub

claims to use and govern them as such." lican present, with Messrs. McDou- If, then, the Governors of the gall, of California, Harding and Nes- States, or of most of them, should mith, of Oregon. Th9 bill then passed see fit to respond to the President's without a call of the Yeas and Nays. requisitions as Gov. Caleb Strong, of

Massachusetts, did to those of PreThe President proceeding to con- sident Madison in 1813-14, and as stitute an enrolling board for each Govs. Letcher," Ellis, Harris, MaCongress district in the loyal States, goffin, Jackson, and Burton, did to and the Board to enroll those who President Lincoln's requisitions in were held to military service under 1861, the Federal authority may be its provisions, the repugnance to successfully defied, and what Mr. being drafted into the service began Jefferson Davis terms “the dissoluto threaten organized and formidable tion of a league” secured. It were resistance. That the enrolling act absurd to contend that judges who was unconstitutional and void, was so held were opposed, either in prinvery generally held and proclaimed ciple or in sympathies, to the cause, by the Opposition, and was in due or at least to the ethics, of Secession. time formally adjudged by Justice John H. McCunn, of the New York

The Constitution of the United Supreme Court, as also by the De. mocratic justices' forming a majority

States (Art. I., $ 9) prescribes that of the Supreme Court of Pennsyl

“The privilege of the writ of habeas cor

| pus shall not be suspended, unless when, in vania. That Court held broadly that cases of rebellion or invasion, the public the Federal Government has no safety may require it.” power to recruit its armies otherwise The implication that it may be than by voluntary enlistments; that suspended in the cases specified is so the Militia can be called out only by irresistible that its justice has never State authority, under State officers, been seriously questioned. But by and in accordance with State laws. whom may it be suspended ? And Says Judge Woodward :

with what effect? That Congress “The great vice of the conscript law is, should authorize the suspension, was that it is founded on an assumption that Congress may take away, not the State generally held by the early and esrights of the citizen, but the security and teemed commentators: but suppose foundation of liis State rights. And how | Congress not in session-nay, suplong is civil liberty expected to last, after the securities of civil liberty are destroyed ? | pose no Congress to be in existenceThe Constitution of the United States com- | when a great and imminent public mitted the liberties of the citizen in part to the Federal Government, but expressly re

peril shall require such suspensionserved to the States, and the people of the what then? To this question, no States, all it did not delegate. It gave the conclusive answer had been given, General Government a standing army, but

when, at the very outbreak of the in all this balancing of powers, were wise Rebellion, the President authorized ** and good; but this legislation disregards le these distinctions and upturns the whole

Gen. Scott to suspend the privilege system of government when it converts the of habeas corpus,

14 Chief Justice Lowrie and Justices Wood- See Vol. I., pp. 459-60. The Democratic ward and Thompson.

| Governors were a unit. 20 April 27, 1861.

HABEAS CORPUS-MR. VALLANDIG HAM'S CASE.

489

"if, at any point on or in the vicinity of the , * * * The habit of declaring sympathies military line which is now or which shall be for the enemy will not be allowed in this used between the city of Philadelphia and department. Persons committing such ofthe city of Washington, you find resistance fenses will be at once arrested, with a view which renders it necessary.".

to being tried, as above stated, or sent A similar discretion was soon

beyond our lines into the lines of their

friends. It must be distinctly understood afterward” accorded to our com- that treason, expressed or implied, will not mander on the Florida coast; the be tolerated in this department.” authority conferred on Gen. Scott Whether this was specially aimed was soon extended; " it was next at Vallandigham or not, it was easily made a general so far as it might foreseen that he would be one of the affect persons arrested by military first to expose himself to its penalties ; authority as guilty of disloyal prac

and but three weeks elapsed from the tices; and — Congress having at

date of the order before he was arlength by express act authorized | rested ” at night while in bed in his such suspension—the President pro- own house, on a charge of having, in claimed as a general suspension of the a recent speech at Mount Vernon, privilege of habeas corpusto “con- | “publicly expressed sympathy for those

in arms against the Government of the tinue throughout the duration of

United States, and declared (lisloyal sentisuch Rebellion.” But, months ere ments and opinions, with the object and this, a serious collision between mili

purpose of weakening the power of the Go

vernment in its efforts to suppress an untary authority and Peace Democ lawful Rebellion." racy had been inaugurated, and had | Being arraigned before a Courtcreated much excitement, in Ohio. Martial over which Brig.-Gen. R. B.

Mr. C. L. Vallandigham, having Potter presided, he was found guilty been defeated in his canvass for re- on some of the specifications emelection by Gen. Robert C. Schenck, braced in the charge, and sentenced at the Ohio State Election in 1862, to close confinement till the end of ceased to be a Member at the close the War. Gen. Burnside designated of the XXXVIIth Congress." Re-Fort Warren, in Boston harbor, as turning to Ohio, where he had al- the place of such confinement; but ready been suggested as the Demo- the President modified the sentence cratic candidate for Governor in the into a direction that Mr. V. should canvass of that year, he speedily en- be sent through our military lines gaged in a popular canvass of the into the Southern Confederacy, and, War and the Federal Administration, in case of his return therefrom, le in a spirit of sweeping hostility to should be confined as prescribed in both. Gen. Burnside, who had just the sentence of the court. Judge been transferred to and placed in Leavitt, of the U. S. District Court command of the military department for Ohio, was applied to for a writ of including Ohio, put forth "a general habeas corpus to take the prisoner order, wherein he proclaimed that out of the hands of the military, but henceforth

refused it. * All persons found within our lines who | This sentence was duly executed commit acts for the benefit of the enemies | of our country will be tried as spies or

| by Gen. Rosecrans, so far as to send traitors, and, if convicted, will suffer death. the convict into the Confederacy;

May 2. ** July 2. - Sept. 24, '62. "May 3.28 Sept. 15.36 March 3, '63. *7 April 3. May 4. but he remained there only a few, answer for & capital or otherwise infamous weeks, taking a blockade-runner from weelze taking a blockademinnor from crime, unless on a presentinent or indict

ment of a grand jury, except in cases arising Wilmington to Nassau, and thence in the land and naval forces, or in the milimaking his way in due time to Can- tia, when in actual service in time of war or ada, where he remained: having

| public danger;' and further, that in all meantime been nominated for Gov- joy the right of a speedy and public trial by ernor by an overwhelming vote in a an impartial jury of the State and district

wherein the crime was committed. large Democratic State Convention,

Resolved, That, in the election of Gov and with an understanding that, in Seymour, the people of this state, by an em. case of his anticipated election, he

phatic majority, declared their condemna.

tion of the system of arbitrary arrests and should be escorted from the State their determination to stand by the Constiline to its capital by a volunteer pro

tution. That the revival of this lawless sys,

tem can have but one result: to divide and cession of Democrats strong enough distract the North, and destroy its confi. to resist successfully any attempt to dence in the purposes of the Adıninistration. rëarrest him.

That we deprecate it as an element of con

fusion at home, of weakness to our armies The action in this case of Gen. in the field, and as calculated to lower the Burnside and his Court Martial crea estimate of American character and inagnify

the apparent peril of our cause abroad. And ted a profound sensation throughout

that, regarding the blow struck at a citizen the country; and a great meeting of Ohio as aimed at the rights of every citiof Democrats was held” at Albany,

zen of the North, we denounce it as against

the spirit of our laws and Constitution, and wherein very strong resolves con most earnestly call upon the President of demning such action were unani- the United States to reverse the action of

the military tribunal which has passed a mously passed—among them the fol

cruel and unusual punishment' upon the lowing:

party arrested, prohibited in terms by the " Resolred, That we denounce the recent

Constitution, and to restore him to the libassumption of a military coinmander to seize

erty of which he has been deprived.” and try a citizen of Ohio, Clement L. Val- Hon. Erastus Corning, President of landigham, for no other reason than words

the meeting, transmitted, by its order, addressed to a public meeting, in criticism of the course of the Administration and in these resolves to President Lincoln; condemnation of the military orders of that who, after taking ample time to conGeneral. “Resolved, That this assumption of power / 51

sider them, responded frankly, courby a military tribunal, if successfully as- teously, elaborately, cogently; and, as serted, not only abrogates the right of the the subject discussed is one of grave, people to assemble and discuss the affairs of government, the liberty of speech and of the abiding interest, the material portion press, the right of trial by jury, the law of of his reply will here be given. He evidence, and the privilege of habeas corpus, but it strikes a fatal blow at the supremacy

says: of law and the authority of the State and “The resolutions promise to support me Federal Constitutions.

in every constitutional and lawful measure Resolved, That the Constitution of the to suppress the Rebellion; and I have not United States—the supreme law of the land | knowingly employed, nor shall knowingly -has defined the crime of treason against employ, any other. But the meeting, by the United States to consist only in levy- their resolutions, assert and argue that cering war against them, or adhering to their tain military arrests, and proceedings folenemies, giving them aid and comfort,' and lowing them, for which I am ultimately rehas provided that ‘no person shall be con- sponsible, are unconstitutional. I think they victed of treason, unless on the testimony are not. The resolutions quote from the of two witnesses to the same overt act, or Constitution the definition of treason, and on confession in open court.' And it further also the limiting safeguards and guaranties provides that no person shall be held to therein provided for the citizen on trial for

29 May 16.

PRESIDENT LINCOLN ON ARBITRARY ARRESTS.

491

treason, and on his being held to answer for States flag, all before I was inaugurated, and, capital or otherwise infamous crimes, and, of course, before I had done any official act in criminal prosecutions, his right to a speedy | whatever. The Rebellion thus began soon and public trial by an impartial jury. They ran into the present civil war; and, in cerproceed to resolve, that these safeguards tain respects, it began on very unequal terms of the rights of the citizen against the pre- between the parties. The insurgents had tensions of arbitrary power were intended been preparing for it more than thirty years, more especially for his protection in times of while the Government had taken no steps to civil commotion.' And, apparently to de- / resist them. The former had carefully coninonstrate the proposition, the resolutions | sidered all the means which could be turned proceed: They were secured substantially to their account. It undoubtedly was a wellto the English people after years of pro- | pondered reliance with them that, in their tracted civil war, and were adopted into our own unrestricted efforts to destroy Union, Constitution at the close of the Revolution.' Constitution, and law, all together, the GovWould not the demonstration have been ernment would, in great degree, be restrainbetter if it could have been truly said that ed by the same Constitution and law from these safeguards had been allopted and ap- arresting their progress. Their sympathizplied during the civil wars, and during our ers pervaded all departments of the GovernRevolution, instead of af er the one and at ment and nearly all communities of the peothe close of the other? I, too, am devotedly ple. From this material, under cover of for then after civil war, and before civil liberty of speech,' liberty of the press, wir, aníl at all times, 'except when, in cases and 'habeas corpus,' they hoped to keep on of rebellion or invasion, the public safety foot amongst us a most efficient corps of may require their suspension. The resolu- spies, inforiners, suppliers, and aiders and tions proceed to tell us that these safeguards abettors of their cause in a thousand ways.

have stood the test of seventy-six years of They knew that, in times such as they were trial, under our republican system, under inaugurating, by the Constitution itself, the circunstances which show that, while they 'habeas corpus' might be suspended; but constitute the foundation of all free govern- they also knew they had friends who would mnent, they are elements of the enduring make a question as to who was to suspend stability of the Republic.' No one denies that it; meanwhile, their spies and others might they have so stood the test up to the begin- remain at large to help on their cause. Or ning of the present Rebellion, if we except a if, as has happened, the Exeontive should certain occurrence at New Orleans; nor does suspeníl the writ, without ruinous waste of any one question that they will stand the same tine, instances of arresting innocent persons test much longer after the Rebellion closes. Inight occur, as are always likely to occur But these provisions of the Constitution in such cases: and then a clainor could be have no application to the case we have in raised in regard to this, which might be at hand, because the arrests complained ot least of some service to the insurgent canse.' were not made for treason—that is, not for It needed no very keen perception to disthe treason defined in the Constitution, and cover this part of the enemy's programme, upon conviction of which the punishment is so soon as by open hostilities their machinery death-nor yet were they made to hold per was fairly put in motion. Yet, thoroughly sons to answer for any capital or otherwise imbued with a reverence for the guaranteed infamous crimes; nor were the proceedings rights of individuals, I was slow tv adopt following, in any constitutional or legal sense, the strong measures which by degrees I 'criminal prosecutions. The arrests were have been forced to regard as being within made on totally different grounds, and the the exceptions of the Constitution, and as proceedings following accorded with the indispensable to the public safety. Nothing grounds of the arrest. Let us consider the is better known to history than that courts real case with which we are dealing, and of justice are utterly incompetent to such apply to it the parts of the Constitution cases. Civil courts are organized chiefly for plainly made for such cases.

trials of individuals, or, at inost, a few indi“ Prior to my installation here, it had viduals acting in concert; and this in quiet been inculcated that any State had a lawful times, and on charges of crimes well defined right to secede from the national Union, and in the law. Even in times of peace, bands that it would be expedient to exercise the of horse-thieves and robbers frequentlı grow right whenever the devotees of the doctrine too numerous and powerful for oruinary should fail to elect a President to their own courts of justice. But what comparison, in liking. I was elected contrary to their lik- | numbers, have such bands ever borne to the ing; and accordingly, so far as it was legally insurgent sympathizers even in many of the possible, they had taken seven States out of loyal States? Again, a jury too frequently has the Union, had seized many of the United at least one member more ready to hang tho States forts, and had fired upon the United panel than to hang the traitor. And yet,

again, he who dissuades one inan from vol-, very highest places in the Rebel war serunteering, or iniluces one soldier to desert, vice, were all within the power of the Gorweakens the Union cause as much as he who ernment since the Rebellion began, and kills a Union soldier in battle. Yet this dis- | were nearly as well known to be traitors suasion or inducement inay be so conducted then as now. Unquestionably, if we had as to be no defined crime of which any civil seized them and held them, the insurgent court would take cognizance.

canse would be much weaker. But no one "Ours is a case of rebellion—so called of them had then committed any crime deby the resolutions before me-in fact, a fined in the law. Every one of them, if arclear, flagrant, and gigantic case of rebellion; rested, would have been discharged on haand the provision of the Constitution, that beas corpus, were the writ allowed to ope“the privilege of the writ of habeas corpus rate. In view of these and siinilar cases, I shall not be suspended, unless when, in cases think the time not unlikely to come when I of rebellion or invasion, the public safety shall be blarned for having made too few inay require it,' is the provision which arrests rather than too many. specially applies to our present case. This “By the third resolution, the meeting inprovision plainly attests the understanding dicate their opinion that military arrests of those who made the Constitution, that may be constitutional in localities where reordinary courts of justice are inadequate to bellion actually exists, but that such arrests * cases of rebellion-attests their purpose are unconstitutional in localities where rethat, in such cases, men may be held in cus- bellion or insurrection does not actnally ertody whom the courts, acting on ordinary ist. They insist that such arrests shall not rules, would discharge. Habeas corpus does be made 'outside of the lines of necessary not discharge men who are proved to be military occupation, and the scenes of inguilty of detined crime; and its suspension surrection.' Inasinuch, however, as the is allowed by the Constitution on purpose Constitution itself makes no such distincthat men may be arrested and held who tion, I ain unable to believe that there is cannot be proved to be guilty of defined any such constitutional distinction. I concrime, 'when, in cases of rebellion or inva cede that the class of arrests complained of sion, the public safety may require it.' can be constitutional only when, in cases of

"This is precisely our present case- rebellion or invasion, the public safety may case of rebellion, wherein the public safety require them, and I insist that in such cases does require the suspension. Indeed, ar- they are constitutional wherever the public rests by process of courts and arrests in safety docs require them; as well in places cases of rebellion do not proceed altogether to which they may prevent the rebellion upon the same basis. The former is direct- extending, as in those where it inay be aled at the small percentage of ordinary and ready prevailing; as well where they may continuous perpetration of crime; while the restrain mischievous interference with the latter is directed at sudden and extensive raising and supplying of armies to suppress uprisings against the Government, which, the rebellion, as where the rebellion may at most, will succeed or fail in no great | actually be; as well where they may relength of time. In the latter case, arrests strain the enticing men out of tlie army, as are made, not so much for what has been where they would prevent mutiny in the cone, as for what probably would be done.army; equally constitutional at all places The latter is more for the preventive and where they will conduce to the public safeless for the vindictive than the former. Inty, as against the dangers of rebellion or insuch cases, the purposes of men are much vasion. Take the pecnliar case inentioned more easily understood than in cases of by the meeting. It is asserted, in substance, ordinary crime. The man who stands by that Mr. Vallandigham was, by a military and says nothing, when the peril of his Gov-commander, seized and tried for no other ernment is discussed, cannot be misunder- | reason than words addressed to a publio stood. If not hindered, he is sure to help meeting, in criticism of the course of the the enemy; much more, if he talks ambigo Administration, and in condemnation of the ously-talks for his country with 'buts and military orders of the General.' Now, if "ifs' and 'ands.' Of how little value the there be no mistake about this; if this asconstitutional provisions I have quoted will sertion is the truth and the whole truth; if be rendered, if arrests shall never be made there was no other reason for the arrest, until defined crimes shall have been com- then I concede that the arrest was wrong. initted, may be illustrated by a few notable But the arrest, as I understand, was inade examples.' Gen. John C. Breckinridge, Gen. for a very different reason. Mr. Vallandig. Robert E. Lee, Gen. Joseph E. Johnston, ham avows his hostility to the war on the Gen. John B. Magruder, Gen. William part of the Union; and his arrest was made Preston, Gen. Simon B. Buckner, and Com. because he was laboring, with some effect, Franklin Buchanan, now occupying the l to prevent the raising of troops; to encour

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