by 11 Yeas (all Democrats) to 35 Nays: consisting of every Republican present, with Messrs. McDougall, of California, Harding and Nesmith, of Oregon. The bill then passed without a call of the Yeas and Nays. The President proceeding to constitute an enrolling board for each Congress district in the loyal States, and the Board to enroll those who were held to military service under its provisions, the repugnance to being drafted into the service began to threaten organized and formidable resistance. That the enrolling act was unconstitutional and void, was very generally held and proclaimed by the Opposition, and was in due time formally adjudged by Justice John H. McCunn, of the New York State militia into 'National forces,' and claims to use and govern them as such." If, then, the Governors of the States, or of most of them, should see fit to respond to the President's requisitions as Gov. Caleb Strong, of Massachusetts, did to those of President Madison in 1813-14, and as Govs. Letcher," Ellis, Harris, Magoffin, Jackson, and Burton, did to President Lincoln's requisitions in 1861, the Federal authority may be successfully defied, and what Mr. Jefferson Davis terms "the dissolution of a league" secured. It were absurd to contend that judges who so held were opposed, either in principle or in sympathies, to the cause, or at least to the ethics, of Secession. pus The Constitution of the United Supreme Court, as also by the De States (Art. I., § 9) prescribes that mocratic justices" forming a majority of the Supreme Court of Pennsylvania. That Court held broadly that the Federal Government has no power to recruit its armies otherwise than by voluntary enlistments; that the Militia can be called out only by State authority, under State officers, and in accordance with State laws. Says Judge Woodward: "The privilege of the writ of habeas corshall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it." "The great vice of the conscript law is, that it is founded on an assumption that Congress may take away, not the State rights of the citizen, but the security and foundation of his State rights. And how long is civil liberty expected to last, after the securities of civil liberty are destroyed? The Constitution of the United States committed the liberties of the citizen in part to the Federal Government, but expressly reserved to the States, and the people of the States, all it did not delegate. It gave the General Government a standing army, but left to the States their militia. Its purposes, in all this balancing of powers, were wise and good; but this legislation disregards these distinctions and upturns the whole system of government when it converts the 18 Chief Justice Lowrie and Justices Woodward and Thompson. The implication that it may be suspended in the cases specified is so irresistible that its justice has never been seriously questioned. But by whom may it be suspended? And with what effect? That Congress should authorize the suspension, was generally held by the early and esteemed commentators: but suppose Congress not in session-nay, suppose no Congress to be in existencewhen a great and imminent public peril shall require such suspension— what then? To this question, no conclusive answer had been given, when, at the very outbreak of the Rebellion, the President authorized " Gen. Scott to suspend the privilege of habeas corpus, 19 See Vol. I., pp. 459-60. The Democratic Governors were a unit. 20 April 27, 1861. HABEAS CORPUS-MR. VALLANDIGHAM'S CASE. 489 "if, at any point on or in the vicinity of the military line which is now or which shall be used between the city of Philadelphia and the city of Washington, you find resistance which renders it necessary." 22 soon * * *The habit of declaring sympathies for the enemy will not be allowed in this department. Persons committing such offenses will be at once arrested, with a view to being tried, as above stated, or sent beyond our lines into the lines of their friends. It must be distinctly understood that treason, expressed or implied, will not be tolerated in this department.” Whether this was specially aimed at Vallandigham or not, it was easily foreseen that he would be one of the first to expose himself to its penalties; and but three weeks elapsed from the date of the order before he was ar"rested" at night while in bed in his own house, on a charge of having, in a recent speech at Mount Vernon, "publicly expressed sympathy for those United States, and declared disloyal sentiin arms against the Government of the A similar discretion was afterward" accorded to our commander on the Florida coast; the authority conferred on Gen. Scott was soon extended; " it was next made" general so far as it might affect persons arrested by military authority as guilty of disloyal practices; and Congress having at length by express act authorized such suspension-the President proclaimed "a general suspension of the privilege of habeas corpus-to "continue throughout the duration of such Rebellion." But, months ere this, a serious collision between military authority and Peace Democracy had been inaugurated, and had created much excitement, in Ohio. Mr. C. L. Vallandigham, having been defeated in his canvass for reelection by Gen. Robert C. Schenck, at the Ohio State Election in 1862, ceased to be a Member at the close of the XXXVIIth Congress." Returning to Ohio, where he had already been suggested as the Democratic candidate for Governor in the canvass of that year, he speedily engaged in a popular canvass of the War and the Federal Administration, in a spirit of sweeping hostility to both. Gen. Burnside, who had just been transferred to and placed in command of the military department including Ohio, put forth "a general order, wherein he proclaimed that henceforth "All persons found within our lines who commit acts for the benefit of the enemies of our country will be tried as spies or traitors, and, if convicted, will suffer death. "May 2. "July 2. 23 Sept. 24, '62. "May 3. 25 ments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful Rebellion." Being arraigned before a CourtMartial over which Brig.-Gen. R. B. Potter presided, he was found guilty on some of the specifications embraced in the charge, and sentenced to close confinement till the end of the War. Gen. Burnside designated Fort Warren, in Boston harbor, as the place of such confinement; but the President modified the sentence into a direction that Mr. V. should be sent through our military lines into the Southern Confederacy, and, in case of his return therefrom, he should be confined as prescribed in the sentence of the court. Judge Leavitt, of the U. S. District Court for Ohio, was applied to for a writ of habeas corpus to take the prisoner out of the hands of the military, but refused it. This sentence was duly executed by Gen. Rosecrans, so far as to send the convict into the Confederacy; Sept. 15. 26 March 3, '63. "April 3. May 4. 27 answer for a capital or otherwise infamous crime, unless on a presentment or indictin the land and naval forces, or in the mili ment of a grand jury, except in cases arising tia, when in actual service in time of war or criminal prosecutions, the accused shall en. public danger;' and further, that in all but he remained there only a few ernor by an overwhelming vote in a large Democratic State Convention, and with an understanding that, in case of his anticipated election, he should be escorted from the State line to its capital by a volunteer procession of Democrats strong enough to resist successfully any attempt to rëarrest him. 29 The action in this case of Gen. Burnside and his Court Martial created a profound sensation throughout the country; and a great meeting of Democrats was held' at Albany, wherein very strong resolves condemning such action were unanimously passed-among them the following: "Resolved, That we denounce the recent assumption of a military commander to seize and try a citizen of Ohio, Clement L. Vallandigham, 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 that General. "Resolved, That this assumption of power by a military tribunal, if successfully asserted, not only abrogates the right of the people to assemble and discuss the affairs of government, the liberty of speech and of the press, the right of trial by jury, the law of evidence, and the privilege of habeas corpus, but it strikes a fatal blow at the supremacy of law and the authority of the State and Federal Constitutions. an impartial jury of the State and district wherein the crime was committed.' "Resolved, That, in the election of Gov Seymour, the people of this State, by an em phatic majority, declared their condemna tion of the system of arbitrary arrests and their determination to stand by the Consti tem can have but one result: to divide and tution. That the revival of this lawless sys、 distract the North, and destroy its confidence in the purposes of the Administration. That we deprecate it as an element of confusion at home, of weakness to our armies in the field, and as calculated to lower the estimate of American character and magnify that, regarding the blow struck at a citizen the apparent peril of our cause abroad. And of Ohio as aimed at the rights of every citizen of the North, we denounce it as against the spirit of our laws and Constitution, and most earnestly call upon the President of the United States to reverse the action of cruel and unusual punishment' upon the the military tribunal which has passed a party arrested, prohibited in terms by the Constitution, and to restore him to the liberty of which he has been deprived." Hon. Erastus Corning, President of the meeting, transmitted, by its order, these resolves to President Lincoln; who, after taking ample time to consider them, responded frankly, courteously, elaborately, cogently; and, as the subject discussed is one of grave, abiding interest, the material portion of his reply will here be given. He says: "The resolutions promise to support me in every constitutional and lawful measure to suppress the Rebellion; and I have not knowingly employed, nor shall knowingly employ, any other. But the meeting, by their resolutions, assert and argue that certain military arrests, and proceedings following them, for which I am ultimately responsible, are unconstitutional. I think they are not. The resolutions quote from the Constitution the definition of treason, and also the limiting safeguards and guaranties therein provided for the citizen on trial for May 16. "Resolved, That the Constitution of the United States-the supreme law of the land -has defined the crime of treason against the United States to consist only in levying war against them, or adhering to their enemies, giving them aid and comfort,' and has provided that no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.' And it further provides that no person shall be held to 29 tres cap PRESIDENT LINCOLN ON ARBITRARY ARRESTS. treason, and on his being held to answer for capital or otherwise infamous crimes, and, in criminal prosecutions, his right to a speedy and public trial by an impartial jury. They proceed to resolve, that these safeguards of the rights of the citizen against the pretensions of arbitrary power were intended more especially for his protection in times of civil commotion.' And, apparently to denonstrate the proposition, the resolutions proceed: 'They were secured substantially to the English people after years of protracted civil war, and were adopted into our Constitution at the close of the Revolution.' Would not the demonstration have been better if it could have been truly said that these safeguards had been adopted and applied during the civil wars, and during our Revolution, instead of after the one and at the close of the other? I, too, am devotedly for them after civil war, and before civil war, and at all times, 'except when, in cases of rebellion or invasion, the public safety may require' their suspension. The resolutions proceed to tell us that these safeguards have stood the test of seventy-six years of trial, under our republican system, under circumstances which show that, while they constitute the foundation of all free government, they are elements of the enduring stability of the Republic.' No one denies that they have so stood the test up to the beginning of the present Rebellion, if we except a certain occurrence at New Orleans; nor does any one question that they will stand the same test much longer after the Rebellion closes. But these provisions of the Constitution have no application to the case we have in hand, because the arrests complained of were not made for treason—that is, not for the treason defined in the Constitution, and upon conviction of which the punishment is death-nor yet were they made to hold persons to answer for any capital or otherwise infamous crimes; nor were the proceedings following, in any constitutional or legal sense, 'criminal prosecutions.' The arrests were made on totally different grounds, and the proceedings following accorded with the grounds of the arrest. Let us consider the real case with which we are dealing, and apply to it the parts of the Constitution plainly made for such cases. "Prior to my installation here, it had been inculcated that any State had a lawful right to secede from the national Union, and that it would be expedient to exercise the right whenever the devotees of the doctrine should fail to elect a President to their own liking. I was elected contrary to their liking; and accordingly, so far as it was legally possible, they had taken seven States out of the Union, had seized many of the United States forts, and had fired upon the United 491 Or States flag, all before I was inaugurated, and, of course, before I had done any official act whatever. The Rebellion thus began soon ran into the present civil war; and, in certain respects, it began on very unequal terms between the parties. The insurgents had been preparing for it more than thirty years, while the Government had taken no steps to resist them. The former had carefully considered all the means which could be turned to their account. It undoubtedly was a wellpondered reliance with them that, in their own unrestricted efforts to destroy Union, Constitution, and law, all together, the Government would, in great degree, be restrained by the same Constitution and law from arresting their progress. Their sympathizers pervaded all departments of the Government and nearly all communities of the people. From this material, under cover of liberty of speech,' 'liberty of the press,' and 'habeas corpus,' they hoped to keep on foot amongst us a most efficient corps of spies, informers, suppliers, and aiders and abettors of their cause in a thousand ways. They knew that, in times such as they were inaugurating, by the Constitution itself, the habeas corpus might be suspended; but they also knew they had friends who would make a question as to who was to suspend it; meanwhile, their spies and others might remain at large to help on their cause. if, as has happened, the Executive should suspend the writ, without ruinous waste of time, instances of arresting innocent persons night 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 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 bands ever borne to the insurgent sympathizers even in many of the loyal States? Again, a jury too 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 be 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 on ordinary rules, would discharge. Habeas corpus does not discharge men who are proved to be guilty 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 casecase 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. Gen. John C. Breckinridge, Gen. Robert E. Lee, Gen. Joseph E. Johnston, Gen. John B. Magruder, Gen. William Preston, Gen. Simon B. Buckner, and Com. 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 them 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 indicate 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 distinetion, 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 does require 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, in 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 encour |