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of his speeches has been to stir up men against and hence, I shall expect, that on returning, the prosecution of the war, and that in the he would not put himself practically in antagmidst of resistance to it he has not been known onism with the position of his friends. But I in any instance to counsel against such resist- do it chiefly because I thereby prevail on every ance, it is next to impossible to repel the infer- influential gentleman of Ohio to so define their ence, that he has counseled directly in favor position as to be of immense value to the army of it.
--thus more than compensating for the conseWish all this before their eyes, the conven- quences of any mistake in allowing Mr. Valtion you represent have nominated Mr. Val- į landigham to return, so that on the whole the landigham for governor of Ohio; and both they public safety will not have suffered by it. Still and you have declared the purpose to sustain in regard to Mr Vallandigham and all others, the national Union by all constitucional means. I must hereafter, as heretofore, do so much as But of course they and you, in common, re- the public safety may seem to require. I have serve to yourselves to decide what are consti- the honor to be respectfully yours, etc., tutional means, and, unlike the Albany meet
A, LINCOLN. in, you omit to state or intimate that in your opinion an army is a constitutional means of
The Rejoinder. saving the Union against a rebellion, or even
NEW YORK CITY, July 1, 1863. to intimate that you are conscious of an exist
To His Excellency the President of the United States: ing rebellion at ed object of destroying that very Union. At SIR:-Your answer to the application of the the same time your nominee for governor, in undersigned for a revocation of the order of whose behalf you appeal, is known to you and banishment of Clement L. Vallandigham, reto the world to declare against the use of an quires a rerly, which they proceed, with as army to
suppress the rebellion. Your own atti- little delay as practicable, to make. tude, therefore, encourages desertion, resist- They are not able to appreciate the force of ance to the draft and like, because it teaches the distinction you make between the Constithose who incline to desert and to escape the tution and the application of the Constitution, draft to believe it is your purpose to protect whereby you assume that powers are delegated them, and to hope that you will become strong to the President at the time of invasion or inenough to do so.
surrection in derogation of the plain language After a short personal inüercourse with you,
of the Constitution. The inherent provisions gentlemen of the committee, I cannot say I of the Constitution remaining the same in time think you desire this effect to follow your atti- of insurrection or invasion as in time of peace, tude, but I assure you that both friends and the President can have no more right to disreenemies of the Union look upon it in this light. gard their positive and imperative requireIt is a substantial hope, and by consequence a
ments at the former time than at the latter. real strength to the enemy. It is a false hope Because some things may be done by the terms and one which you would willingly dispel. 'I of the Constitution at the time of invasion or will make the way, exceedingly easy. I send | insurrection which would not be required by you duplicates of this letter, in order that you the occasion in time of
the occasion in time of peace, you assume that or a majority of you may, if you choose, indorse anything whatever, even though not expressed your names upon one of them, and return it by the Constitution, may be done on the occathus endorsed to me, with the understanding sion of insurrection or invasion which the that those signiug are thereby committed to the President may choose to say is required by the following propositions, and to nothing else: public safety. In plainer terms, because the 1. That there is a rebellion now in the United States, time of invasion or insurrection, you infer
writ of habeas corpus may be suspended at the the object and tendency of which is to destroy the national Union, and that, in your opinion an army and navy are that all other provisions of the Constitution constitutional means for suppressing that rebellion.
2. That no one of you will do anything wbich; in his having in view the protection of the life, libown judgment, will tend to hinder the increase
or favor erty and property of the citizen may be in like the decrease, or lessen the efficiency of the army or navy manner suspended. while engaged in the effort to suppress that rebellion, and The provision relating to the writ of habeas
3. That each of you will, in his sphere, do all he can to have the officers, soldiers and seamen of the army and
corpus, being contained in the first article of navy, while engaged in the effort to suppress the rebel- the Constitution, the purpose of which is to delion, paid, fed, clad, and otherwise well-provided and sup- fine the powers delegated to Congress, has no ported.
connection in language with the declaration of And with the further understanding thai, rights, as guarantees of personal liberty, conupon receiving the letter and names thus in- tained in the additional and amendatory artidorsed, I will cause them to be published, cles. And inasmuch as the provision relating which publication shall be, within itself, a re- to habeas corpus expressly provides for its susvocation of the order in relation to Mr. Val- pension, and the other provisions alluded to do landigham.
not provide for any such thing, the legal conIt will not escape observation that I consent clusion is, thật the suspension of the laiter is to the release of Mr. Valiandigham upon terms unauthorized. The provision for the writ of not embracing any pledge from bim or from habeas corpus is merely intended to furnish a others, as to what he will or will not do. I do summary remedy, and not the means whereby this because he is not present to speak for hiin- personal security is conserved, in the final reself, or to authorize others to speak for him, I sort; while the other provisions are guarantees
of personal rights, the suspension of which ion, and your declarations of the requirements puts an end to all pretense of free government. of the public safety the law of the land. Our It is true Mr. Vallandigham applied for a writ inquiry was not, therefore, oppression. But the denial of this did not take simply a question who shall decide, or the affirmation oppression. But the denial of this did not take that nobody shall decide what the public safety requires. away his right to a speedy public trial by an impartial jury, or deprive him of his other | Our government is a government of law, and rights as an American citizen. Your assump- it is the law-making power which ascertains tion of the right to suspend all the constitú- what the public safety requires, and prescribes tional guarantees of personal liberty, and even
the rule of action; and the duty of the Presiof the freedom of speech and of the press, be- dent is simply to execute the laws thus enacted cause the summary remedy of habeas corpus and not to make or annul laws. If any exigenmay be suspended, is at once startling and cy shall arise, the President has the power to alarming to all persons desirous of preserving convene Congress at any time, to provide for it; free government in this country.
so that the plea of necessity furnishes no reasThe inquiry of the undersigned; whether
onable pretext for any assumption of legislative
power. you hold that the rights of every man ihroughout this
For a moment contemplate the consequences vast country, in time of invasion or insurrection, are subject to be annulled, whenever you may say that 'thie pub- of such a claim to power. Not only would the lịc safety requires it,"
dominion of the President be absolute over the was a plain question, undisguised by circum-. rights of individuals, but equally so over the matinn. locution, and intended simply to elicit infor other departments of the government. If he Your affirmative answer
should claim that the public safety required it, to this
he could arrest and imprison a judge for the question throws a shade upon the fondest anticipations of the framers of the Constitution, the judicial power, or supercede it, by the
conscientious discharge of his duties, paralyze who flattered themselves that they had provid- substitution of courts-martial, subject to his ed safeguards against the dangers which have substitution of courts-martial, subject to his ever beset and overthrown free governments in
own will, throughout the whole country. If any other ages and countries. Your answer is not
one of the states, even far removed from the to be disguised by the phraseology that the rebellion, should not sustain his plan for prosquestion
ecuting the war, he could, on this plea of the
public safety, annul and set at defiance the “is simply a question who shall decide, or an affirmation state laws and authorities, arrest and imprison that nobody shall decide what the public safety does require in cases of rebellion or invasion."
the governor of the state, or the members of
the Legislature, while in the faithful discharge Our government was designed to be a gov- of their duties, or he could absolutely control ernment of law, settled and defined, and not of the action, either of Congress or of the Suthe arbitrary will of a single man. As a safe- preme Court, by arresting and imprisoning its guard, the powers granted were divided, and members; and, upon the same ground, he could delegated to the legislative, executive, and ju- suspend the elective franchise, postpone the dicial branches of the government, and each elections, and declare the perpetuity of his made co-ordinate with the others, and supreme high prerogative. And neither the power of within its sphere, and thus a mutual check impeachment, nor the elections of the people, upon each other, in case of abuse of power.
could be made available against such concenIt has been the boast of the American people tration of power. that they had a written Constitution, not only Surely it is not necessary to subvert free expressly defining, but also limiting the powers government in this country in order to put of the government, any providing effectual safe- down the rebellion ; and it cannot be done unguards for personal liberty, security, and pro- der the pretense of putting down the rebellion. perty. And to make the matter more positive Indeed, it is plain that your administration and explicit, it was provided by the amendatory has been weakened, greatly weakened, by the articles, nine and ten, that the enumeration assumption of power not delegated in the Conin the Constitution of certain rights shall not be stitution. construed to deny or disparage others retained In your answer you say to us : by the people," and that the powers not dele
- You claim that men may, if they choose, embarras gated to the United States by the Constitution, those whose duty it is to combat a giant rebellion, and nor prohibited by it to the states, or reserved to
then be dealt with in turn only as if there were no l'ebelthe states respectively or to the people.” With this care and precaution on the part of our fore You will find yourself at fault if you will fathers who framed our institutions, it was not search our communication to you, for any such to be expected that, at so early a day as this, a idea. The undersigned believe that the Conclaim of the President to arbitrary power, lim- stitution and Laws of the land, properly adited only by his conception of the requirements ministered, furnish ample power to put down of the public safety, would have been asserted. an insurrection, without the assumption of
In derogation of the constitutional provis- powers not granted. And if existing legislaions making the President strictly an executive tion be inadequate, it is the duty of Congress officer, and vesting all the delegated legislative to consider what futher legislation is necespower in Congress, your position, as we under sary, and to make suitable provision by law. stand it, would make your will the rule of uict- You claim that the military arrests made by
your administration are merely preventive rem- satisfaction of any candid person, that the disedies "as injunctions to stay injury, or pro- turbances among the people to which you alceedings to keep the peace, and not for pun- lude, in opposition to the arrest of deserters and ishment. The ordinary preventive remedies the draft, have been occasioned mainly by the alluded to are authorized by established law, measures, policy and conduct of your adminisbut the preventive proceedings you institute tration, and the course of its political have their authority merely in the will of the friends. But if the circumstantial evidence executive or that of officers subordinate to his exists, to which you allude, which makes, authority. And in this proceeding a discretion
“It is next to impossible to repel the inference that Mr. seems to be exercised as to whether the prison- Vallandigham has counseled directly in favor” er shall be allowed a trial; or even be permitted to know the nature of the complaint al- of this resistance, and that the same has been leged against him, or the name of his accuser. mainly attributable to his conduct, .why was If the proceedinge be merely preventive, why he not turned over to the civil authorities to be not allow the prisioner the benefit of a bond to tried under the late acts of Congress? If there keep the peace? But if no offense has been be any foundation in fact for your statements committed, why was Mr. Vallandigham tried, implicating him in resistance to the constituted convicted and sentenced by a court-martial authorities, he is liable to such prosecution. And why the actual punishment, by imprison- And we now demand, as a mere act of justice ment or banishment, without the opportunity to him, an investigation of this matter before a
ng his liberty in the mode usual in jury of his country; and respectfully insist that preventive remedies, and yet say,
it is not for fairness requires, ether that you retract these punishment?
charges which you make against him, or that You still place Mr. Vallandigham's convic- you revoke your order of banishment and allow tion and banishment upon the ground that he him the opportunity of an investigation before had damaged the military service by discourag
an impartial jury.
The committee do not deem it necessary to ing enlistments and encouraging desertions, &c.; and yet you have not even pretended to repel at length the imputation that the atticontrovert our position, that he was not charg- tude of themselves or of the Democratic party ed with, tried or convicted for any such offense the
draft and the like," or tends to the breach
encourages desertions, resistance to before the court-martial.
In answer to our position that Mr. Vallan- of any law of the land. Suggestions of that digham was entitled to a trial in the civil tri- kind are not unusual weapons in our ordinary bunals, by virtue of the late acts of Congress, political contests. They rise readily in the
minds of politicians heated with the exciteyou say:
ment of partisan strife. During the two years "I certainly do not know that Mr. Vallandigham has in which the Democratic party of Ohio has specifically and by direct language advised against en
been constrained to oppose the policy of the ing," &c.
administration and to stand up in defense of
the Constitution and of personal rights this And yet, in a subsequent part of your an-charge has been repeatedly made. It has falswer, after speaking of certain disturbances len harmless, however, at the feet of those which are alleged to have occurred in resist- whom it was intended to injure. The commitance of the arrest of deserters, and of the en- tee believe it will do so again. If it were prorollment preparatory to the draft, and which per to do so in this paper, they might sugyou attribute mainly to the course Mr. Vallan- gest that the measures of the administration digham has pursued, you say, that he has made and its changes of policy in the prosecuspeeches against the war in the midst of re- tion of the war have been the fruitful sistance to it, that "he has never been known, sources of discouraging enlistments and inin any instance, to counsel against such re- ducing desertions, and furnish a reason for sistance, and that it is next to impossible the undeniable fact, that the first call for volty repel the inference that he has counseled unteers was answered by very many more than directly in favor of it." Permit the under
Permit the under- were demanded, and that the next call for solsigned to say, that your information is | diers will probably be responded to by drafted most grievously at fault. The undersigned men alone. The observation of the President have been in the habit of hearing Mr. in this connection, that neither the convention Vallandigham speak before popular assem- in its resolutions, nor the committee in its comblages, and they appeal with confidence to every munication, intimate that they are conscious truthful person who has ever heard him, for of an existing rebellion being in progress with the accuracy of the declaration that he has the avowed object of destroying the Union, never made a speech before the people of Ohio needs, perhaps, no reply. The Democratic in which he has not counseled submission and party of Ohio bas felt so keenly the condition obedience to the laws and the Constitution, and of the country, and been so stricken to the advised the peaceful remedies of the judicial heart by the misfortunes and sorrows which tribunals and of the ballot-box for the redress have befallen it, that they hardly deemed it of grievances, and for the evils which afflict our necessary by solemn resolution, when their bleeding and suffering country. And, were it very state exhibited everywhere the sad evinot foreign to the purposes of this communica- dences of war, to remind the President that tion, we would undertake to establish, to the they were aware of its existence.
listments and in favor of desertions and resistance to draft
In the conclusion of your communication, , of the grave questions involved in this discus you propose that, if a majority of our commit- sion, and of a direct answer to their demand.com tee shall affix their signatures to a duplicate and this is made especially apparent by the copy of it, which you have furnished, they fact that this pledge is asked in a communica shall stand committed to three propositions tion which concludes with an intimation of a therein at length set forth; that you will pub- disposition on the part of the President to relish the names thus signed, and that this pub- peat the acts complained of. lication shall operate as a revocation of the The undersigned, therefore, having fully order of banishment. The committee cannot discharged the duty enjoined upon them, leave refrain from the expression of their surprise, the responsibility with the President. that the President should make the fate of Mr.
M. BIRCHARD, 19th district, Chairman. Vallandigham depend upon the opinion of this
DAVID HOUK, Secretary, 3d district,
GĖO. BLISS, 14tli district, committee upon these propositions. If the ar
T. W. BARTLEY, 8th district, rest and banishment were legal, and were de
W. J. GORDON, 18th district, served; if the President exercised a power
JNO: O'NEILL, 13th district,
0. A. WHITE, 6th district, clearly delegated, under circumstances which
W. E. FINCK, 12th district, warranted its exercise, the order ought not to
ALEXANDER LONG, 2d district, be revoked, merely because the committee hold,
JAS, R. MORRIS, 15th district,
GEO. S. CONVERSE, 7th district, or express, opinions accordant with those of
GEO. H. PENDLETON, Ist district, the President. If the arrest and banishment
W. A. HUTCHINS, 11th district, were not legal, or were not deserved by Mr.
A. L. BACKUS, 10th district, Vallandigham, then surely he is entitled to an
J. F. MCKINNEY, 4th district, immediate and unconditional discharge.
J. W. WHITE, 16th district,
F. C. LEBLOND, 5th district, The people of Ohio were not so deeply
LOUIS SCÆHFFER, 17th district, moved by the action of the President, merely
WARREN P. NOBLE, 9th district. because they were concerned for the personal safety or convenience of Mr. Vallandigham,
As showing how reckless the party in power but because they saw in his arrest and banish- were, and how little regard they paid to the ment an attack upon their own personal rights ; law of their own making; we copy the following and they attach value to his discharge chiefly, as it will indicate an ahandonment of the claim article from that old, substantial and candid to the power of such arrest and banishment. journal, the National Intelligencer: However just the undersigned might regard
66THE LAW OF THE CASE. the principles contained in the several propositions submitted by the President, or how- "As much confusion seems to prevail with much-soever they might, under other circum- regard to the legal aspects of the arrest, trial, stances, feel inclined to endorse the sentiments and conviction of Mr Vallandighom, on the contained therein, yet they assure him that charge of giving aid and comfort to the enemy, they have not been authorized to enter into any
we think it proper, in view of the interest atbargains, terms, contracts, or conditions with taching to this question, considered as one of the President of the United States to procure law rather than" of military caprice, to place -the release of Mr. Vallandigham.
distinctly before our readers the points on The opinions of the undersigned, touching which it turns. [Here follows the charge and the questions involved in these propositions, specification, see page 193.] are well known, have been many times publicly "It will thus be seen that the charge and the expressed, are sufficiently manifested in the specification, even if entirely sustained by the resolutions of the convention which they re
evidence, (as to which, in this inquiry, we present, and they cannot suppose that the Pres. raise no question,) seek' to convict. Mr. Valident expects that they will seek the discharge landigham, a citizen of Ohio, of giving aid of Mr. Vallandigham by a pledge, implying and comfort to the enemy? not only an imputation upon their own sinceri
"Now, this offence has, by the recent legis. ty and fidelity as citizens of the United States, lation of Congress, been made expressly.cog. but also carrying with it by implication a con- nizable by the Courts of the United States. cession of the legality of his arrest, trial, and This will appear from the following statute, banishment, against which they, and the con
being vention they represent, have solemnly protested. And while they have asked the revocation “ An Act to suppress insurrection, to punish treason and of the order of banishment not as a favor, but
rebellion, and confiscate the property of rebels, and for
other purposes," as a right, due to the people of Ohio, and with a view to avoid the possibility of conflict or approved July 17, 1862, and found in vol. 12th, disturbance of the public tranquility, they do chapter 195, page 589, of
We cite the not do this, nor does Mr. Vallandigham desire as printed by order of Congress:
any sacrifice of their dignity, or self-re- the sections relative to this topic, as follows: spect.
“Sec. 2. And be it fhrther enacted, That if any person The idea that such a pledge as that asked shall hereafter incite, set on foot, assist, or engage in any from the undersighed would secure the public sebellion or insurrection against the authority of the United safety sufficiently to compensate for any mis- thereto, or shall engage in or give aid or comfort to any take of the President in discharging Mr. Val- such existing rebellion or insurrection, and be convicted landigham is, in their opinion, a mere evasion thereof, such person shall be punished by imprisonment for
a period not exceeding ten years, or by a fine not exceed for it was precisely in view of such an "emering ten thousand dollars, and by the liberation of all his gency” that Congress passed the act of last slaves, if any he have; or by both of said punisments, at the discretion of the court.
July 17th, already cited, and it was to exclude "Sec. 3. And be it further enacted, That every person the possibility of the arbitrary detention of guilty of either of the offences described in this act shall be forever incapable and disqualified to hold any office un
persons held --der the United States."
"as prisoners of the United States by order or authority
of the President of the United States, as state or political 6.The tribunal to take cognizance of such prisoners, or otherwise than as prisoners of war, w cases and questions distinctly appears from the concluding section of this statute, as follows: that Congress passed the act approved on the
3d of March last, and the sections of which, so “Sec. 14. And be it further enacted, That the courts of far as they relate to this case, we have cited - the United States shall have full power to institute pro-above. ceedings, make orders and decrees, issue process, and do
The intervention of a court-martial, all other things necessary to carry this act into effect." illegally charged with the trial of a citizen, isThis is conclusive as to the jurisdiction of of Mr. Vallandigham, who, while deprived of
does not alter the nature of the imprisonment the courts of the United States, and of them his liberty, must be regarded in law as one alone, over the offence alleged to have been committed by Mr. Vallandigham.
"imprisoned by the order or authority of the President, “But the last Congress did not stop here. As acting târough the Department of War.” if to shut the door against any such proceed- "If it be true, as is said, that Mr. Vallandig ings as those instituted by Gen. Burnside, it ham has been imprisoned in Fort Warren by passed an act, approved March 3d, 1863, ex- order of Gen. Burnside, confirming the sen. pressly
tence of the court martial illegally charged "relating to habeas corpus and regulating judicial pro
with the trial of a citizen for an offence made ceedings in certain cases.'
cognizable by the courts, it follows that Mr.
Vallandigham is now held as a 'state or pobThe sections of this act relevant to the case litical prisoner," within the terms of the act of Mr. Vallandigham may be found on page 755 of March 3d, 1863, and it will therefore be the of the volume of the Statutes at Large as just duty, as we doubt not it will be the pleasure, printed by order of Congress, and are as fol- of Mr. Secretary Stanton to report the name lows. [See this law on p. 109.
of Mr. Vallandigham to the Judge of the “The reader can easily educe from these pro- United States Circuit or District Court which visions the law of the question raised by the has local and legal jurisdiction of the offence arrest of Gen. Burnside. They will perceive for which Mr. Vallandigham is now irregularthat proceedings under the writ of habeas cor- ly detained, that he may be put on trial acpus are to be suspended by the courts when cording to the statutes made and provided for ever and wherever the privilege of this writ precisely such offences as he is alleged to have has been suspended by the President, which is committed. His conviction, under such cirnot the case in the State of Ohio. Judge Leav- cumstances, would carry with it the sanction itt, in refusing to grant the writ sued out in be- of law, and as such would receive the assent of half of Mr. Vallandigham, stated that he had law abiding citizens, and be a terror to evil not seen this law, which was cited in court by doers.'' Mr. Pugh, the attorney of Mr. Vallandigham We infer from this fact that Judge Leavitt does not deen it necessary to have a knowledge of the laws which it is his sworn duty to adminis
DANIEL WEBSTER thus defines the prerogater, or that his means of procuring information tives of the people, in times of peace, and in under this head are more limited than those times of war: possessed by layman who read journals which are authorized to publish the laws of the Uni
"It is the ancient and undoubted prerogative ted States officially, or who possess a sufficient of this people to canvass public measures and interest in such matters to purchase the volume the merits of public men. It is a home-bred printed by the eminent publishers, Messrs. right'-a fireside privilege. It hath been enLittle & Brown, of Boston, under the authori- joyed in every house, cottage, and cabin in the ty of Congress. His ignorance of the laws nation. It is not drawn into controversy. It may be his best excuse for not doing his duty is as undoubted as the right of breathing the under them.
or walking on the earth. Belonging to the “And wben a judge of the United States is private life as a right, it belongs to public life found ignorant of the legislation of Congress as a duty, and it is the last duty which those on this head, surely Gen. Burnside may be ex- whose representatives I am shall find me to cused for not knowing that Congress, by the abandon. Aiming at all times to be courteous act of July 17th, 1862, had expressly provided and temperate in its use, except when the right for the trial by the courts of the offence he al- itself is questioned, I shall place myself on the leges against Mr Vallandigham. Nor is it extreme boundary of my right, and bid defiance any answer to say, as Gen. B. urges in his to any arm that would move me from my ground. statement made to the Judge, that
This high constitutional privilege I shall de
fend and exercise within this house and in all we are in a state of civil war, and an emergency is upon
and us which requires the operations of some power that moves places; in time of peace, in time of war, more quickly than the civil,”
at all times. Living I shall assert it, and
PERSONAL AND LEGAL RIGHTS.