of his speeches has been to stir up men against the prosecution of the war, and that in the midst of resistance to it he has not been known in any instance to counsel against such resistance, it is next to impossible to repel the inference, that he has counseled directly in favor of it. With all this before their eyes, the convention you represent have nominated Mr. Vallandigham for governor of Ohio; and both they and you have declared the purpose to sustain the national Union by all constitutional meansBut of course they and you, in common, reserve to yourselves to decide what are constitutional means, and, unlike the Albany meetin, you omit to state or intimate that in Jour opinion an army is a constitutional means of saving the Union against a rebellion, or even to intimate that you are conscious of an existing rebellion being in progress with the avowed object of destroying that very Union. At the same time your nominee for governor, in whose behalf you appeal, is known to you and to the world to declare against the use of an army to suppress the rebellion. Your own attitude, therefore, encourages desertion, resistance to the draft and like, because it teaches those who incline to desert and to escape the draft to believe it is your purpose to protect them, and to hope that you will become strong enough to do so. After a short personal intercourse with you, gentlemen of the committee, I cannot say I think you desire this effect to follow your attitude, but I assure you that both friends and enemies of the Union look upon it in this light. It is a substantial hope, and by consequence a real strength to the enemy. It is a false hope and one which you would willingly dispel. I will make the way, exceedingly easy. I send you duplicates of this letter, in order that you or a majority of you may, if you choose, indorse your names upon one of them, and return it thus endorsed to me, with the understanding that those signing are thereby committed to the following propositions, and to nothing else: 1. That there is a rebellion now in the United States, the object and tendency of which is to destroy the national Union, and that, in your opinion an army and navy are constitutional means for suppressing that rebellion. 2. That no one of you will do anything which; in his own judgment, will tend to hinder the increase or favor the decrease, or lessen the efficiency of the army or navy while engaged in the effort to suppress that rebellion, and 3. That each of you will, in his sphere, do all he can to have the officers, soldiers and seamen of the army and while engaged in the effort to suppress the rebelnavy, lion, paid, fed, clad, and otherwise well-provided and supported. And with the further understanding that, upon receiving the letter and names thus indorsed, I will cause them to be published, them to be published, which publication shall be, within itself, a revocation of the order in relation to Mr. Vallandigham. It will not escape observation that I consent to the release of Mr. Valiandigham upon terms not embracing any pledge from him or from others, as to what he will or will not do. I do this because he is not present to speak for himself, or to authorize others to speak for him, and hence, I shall expect, that on returning, he would not put himself practically in antagonism with the position of his friends. But I do it chiefly because I thereby prevail on every influential gentleman of Ohio to so define their position as to be of immense value to the army thus more than compensating for the consequences of any mistake in allowing Mr. Vallandigham to return, so that on the whole the public safety will not have suffered by it. Still in regard to Mr Vallandigham and all others, I must hereafter, as heretofore, do so much as the public safety may seem to require. I have the honor to be respectfully yours, etc., A, LINCOLN. The Rejoinder. NEW YORK CITY, July 1, 1863. To His Excellency the President of the United States: SIR:-Your answer to the application of the undersigned for a revocation of the order of banishment of Clement L. Vallandigham, requires a rerly, which they proceed, with as little delay as practicable, to make. They are not able to appreciate the force of the distinction you make between the Constitution and the application of the Constitution, whereby you assume that powers are delegated to the President at the time of invasion or insurrection in derogation of the plain language of the Constitution. The inherent provisions of the Constitution remaining the same in time of insurrection or invasion as in time of peace, the President can have no more right to disregard their positive and imperative requirements at the former time than at the latter.Because some things may be done by the terms of the Constitution at the time of invasion or insurrection which would not be required by the occasion in time of peace, you assume that anything whatever, even though not expressed by the Constitution, may be done on the occasion of insurrection or invasion which the President may choose to say is required by the public safety. In plainer terms, because the writ of habeas corpus may be suspended at the time of invasion or insurrection, you infer that all other provisions of the Constitution having in view the protection of the life, liberty and property of the citizen may be in like manner suspended. The provision relating to the writ of habeas corpus, being contained in the first article of the Constitution, the purpose of which is to define the powers delegated to Congress, has no connection in language with the declaration of rights, as guarantees of personal liberty, contained in the additional and amendatory articles. And inasmuch as the provision relating to habeas corpus expressly provides for its suspension, and the other provisions alluded to do not provide for any such thing, the legal conclusion is, that the suspension of the latter is unauthorized. The provision for the writ of habeas corpus is merely intended to furnish a summary remedy, and not the means whereby personal security is conserved, in the final resort; while the other provisions are guarantees of personal rights, the suspension of which puts an end to all pretense of free government. It is true Mr. Vallandigham applied for a writ of habeas corpus as a summary remedy against oppression. But the denial of this did not take away his right to a speedy public trial by an impartial jury, or deprive him of his other rights as an American citizen. Your assumption of the right to suspend all the constitutional guarantees of personal liberty, and even of the freedom of speech and of the press, because the summary remedy of habeas corpus may be suspended, is at once startling and alarming to all persons desirous of preserving free government in this country. The inquiry of the undersigned; whether you hold that the rights of every man throughout this vast country, in time of invasion or insurrection, are subject to be annulled, whenever you may say that the public safety requires it," was a plain question, undisguised by circumlocution, and intended simply to elicit information. Your affirmative answer to this question throws a shade upon the fondest anticipations of the framers of the Constitution, who flattered themselves that they had provided safeguards against the dangers which have ever beset and overthrown free governments in other ages and countries. Your answer is not to be disguised by the phraseology that the question "is simply a question who shall decide, or an affirmation that nobody shall decide what the public safety does require in cases of rebellion or invasion." Our ion, and your declarations of the requirements For a moment contemplate the consequences of such a claim to power. Not only would the dominion of the President be absolute over the rights of individuals, but equally so over the other departments of the government. If he should claim that the public safety required it, he could arrest and imprison a judge for the conscientious discharge of his duties, paralyze the judicial power, or supercede it, by the substitution of courts-martial, subject to his substitution of courts-martial, subject to his own will, throughout the whole country. If any one of the states, even far removed from the rebellion, should not sustain his plan for prosecuting the war, he could, on this plea of the public safety, annul and set at defiance the state laws and authorities, arrest and imprison the governor of the state, or the members of the Legislature, while in the faithful discharge of their duties, or he could absolutely control the action, either of Congress or of the Supreme Court, by arresting and imprisoning its members; and, upon the same ground, he could suspend the elective franchise, postpone the elections, and declare the perpetuity of his high prerogative. And neither the power of impeachment, nor the elections of the people, could be made available against such concentration of power. Surely it is not necessary to subvert free government in this country in order to put down the rebellion; and it cannot be done under the pretense of putting down the rebellion. Indeed, it is plain that your administration has been weakened, greatly weakened, by the assumption of power not delegated in the Constitution. Our government was designed to be a government of law, settled and defined, and not of the arbitrary will of a single man. As a safeguard, the powers granted were divided, and delegated to the legislative, executive, and judicial branches of the government, and each made co-ordinate with the others, and supreme within its sphere, and thus a mutual check upon each other, in case of abuse of power. It has been the boast of the American people that they had a written Constitution, not only expressly defining, but also limiting the powers of the government, any providing effectual safeguards for personal liberty, security, and property. And to make the matter more positive and explicit, it was provided by the amendatory articles, nine and ten, that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people," and that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, or reserved to the 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 of the public safety, would have been asserted. In derogation of the constitutional provisions making the President strictly an executive officer, and vesting all the delegated legislative power in Congress, your position, as we understand it, would make your will the rule of uct In your answer you say to us : You claim that men may, if they choose, embarras those whose duty it is to combat a giant rebellion, and then be dealt with in turn only as if there were no rebellion." ministered, furnish ample power to put down an insurrection, without the assumption of powers not granted. And if existing legislation be inadequate, it ́is the duty of Congress to consider what futher legislation is necessary, and to make suitable provision by law. You claim that the military arrests made by your administration are merely preventive remedies "as injunctions to stay injury, or proceedings to keep the peace, and not for punishment." The ordinary preventive remedies alluded to are authorized by established law, but the preventive proceedings you institute have their authority merely in the will of the executive or that of officers subordinate to his authority. And in this proceeding a discretion seems to be exercised as to whether the prisoner shall be allowed a trial; or even be permitted to know the nature of the complaint alleged against him, or the name of his accuser. If the proceedings be merely preventive, why not allow the prisioner the benefit of a bond to keep the peace? But if no offense has been committed, why was Mr. Vallandigham tried, convicted and sentenced by a court-martial? And why the actual punishment, by imprisonment or banishment, without the opportunity of obtaining his liberty in the mode usual in preventive remedies, and yet say, it is not for punishment? You still place Mr. Vallandigham's conviction and banishment upon the ground that he had damaged the military service by discouraging enlistments and encouraging desertions, &c.; and yet you have not even pretended to controvert our position, that he was not charged with, tried or convicted for any such offense before the court-martial. In answer to our position that Mr. Vallandigham was entitled to a trial in the civil tribunals, by virtue of the late acts of Congress, you say: "I certainly do not know that Mr. Vallandigham has specifically and by direct language advised against enlistments and in favor of desertions and resistance to drafting," &c. And yet, in a subsequent part of your answer, after speaking of certain disturbances which are alleged to have occurred in resistance of the arrest of deserters, and of the enrollment preparatory to the draft, and which you attribute mainly to the course Mr. Vallandigham has pursued, you say, that he has made speeches against the war in the midst of resistance to it, that "he has never been known, in any instance, to counsel against such resistance," and that "it is next to impossible ty repel the inference that he has counseled directly in favor of it." Permit the undersigned to say, that your information is most grievously at fault. The undersigned have been in the habit of hearing Mr. Vallandigham speak before popular assemblages, and they appeal with confidence to every truthful person who has ever heard him, for the accuracy of the declaration that he has never made a speech before the people of Ohio in which he has not counseled submission and obedience to the laws and the Constitution, and advised the peaceful remedies of the judicial tribunals and of the ballot-box for the redress of grievances, and for the evils which afflict our bleeding and suffering country. And, were it not foreign to the purposes of this communication, we would undertake to establish, to the satisfaction of any candid person, that the disturbances among the people to which you allude, in opposition to the arrest of deserters and the draft, have been occasioned mainly by the measures, policy and conduct of your administration, and the course of its political friends. But if the circumstantial evidence exists, to which you allude, which makes, "It is next to impossible to repel the inference that Mr. Vallandigham has counseled directly in favor" of this resistance, and that the same has been mainly attributable to his conduct, why was he not turned over to the civil authorities to be tried under the late acts of Congress? If there be any foundation in fact for your statements implicating him in resistance to the constituted authorities, he is liable to such prosecution. And we now demand, as a mere act of justice to him, an investigation of this matter before a jury of his country; and respectfully insist that fairness requires, ether that you retract these charges which you make against him, or that you revoke your order of banishment and allow him the opportunity of an investigation before an impartial jury. The committee do not deem it necessary to repel at length the imputation that the attitude of themselves or of the Democratic party the draft and the like," or tends to the breach in Ohio " encourages desertions, resistance to of any law of the land. Suggestions of that kind are not unusual weapons in our ordinary minds of politicians heated with the excitepolitical contests. They rise readily in the ment of partisan strife. During the two years in which the Democratic party of Ohio has been constrained to oppose the policy of the administration and to stand up in defense of the Constitution and of personal rights this charge has been repeatedly made. It has fallen harmless, however, at the feet of those whom it was intended to injure. The committee believe it will do so again. If it were proper to do so in this paper, they might suggest that the measures of the administration and its changes of policy in the prosecution of the war have been the fruitful sources of discouraging enlistments and inducing desertions, and furnish a reason for the undeniable fact, that the first call for volunteers was answered by very many more than were demanded, and that the next call for soldiers will probably be responded to by drafted men alone. The observation of the President in this connection, that neither the convention in its resolutions, nor the committee in its communication, intimate that they "are conscious of an existing rebellion being in progress with the avowed object of destroying the Union," needs, perhaps, no reply. The Democratic party of Ohio has felt so keenly the condition of the country, and been so stricken to the heart by the misfortunes and sorrows which have befallen it, that they hardly deemed it necessary by solemn resolution, when their very state exhibited everywhere the sad evidences of war, to remind the President that they were aware of its existence. 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. 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 order of banishment. The committee cannot refrain from the expression of their surprise, that the President should make the fate of Mr. Vallandigham depend upon the opinion of this committee upon these propositions. If the arrest and banishment were legal, and were deserved; if the President exercised a power clearly delegated, under circumstances which warranted its exercise, the order ought not to be revoked, merely because the committee hold, or express, opinions accordant with those of the President. If the arrest and banishment were not legal, or were not deserved by Mr. Vallandigham, then surely he is entitled to an immediate and unconditional discharge. The undersigned, therefore, having fully discharged the duty enjoined upon them, leaves the responsibility with the President. The people of Ohio were not so deeply moved by the action of the President, merely because they were concerned for the personal safety or convenience of Mr. Vallandigham, but because they saw in his arrest and banishment an attack upon their own personal rights; and they attach value to his discharge chiefly, as it will indicate an abandonment of the claim to the power of such arrest and banishment. However just the undersigned might regard the principles contained in the several propositions submitted by the President, or howmuch-soever they might, under other circumstances, feel inclined to endorse the sentiments contained therein, yet they assure him that they have not been authorized to enter into any or M. BIRCHARD, 19th district, Chairman. As showing how reckless the party in power were, and how little regard they paid to the law of their own making, we copy the following article from that old, substantial and candid journal, the National Intelligencer: "THE LAW OF THE CASE. "As much confusion seems to prevail with regard to the legal aspects of the arrest, trial, and conviction of Mr Vallandighom, on the charge of giving aid and comfort to the enemy, we think it proper, in view of the interest atStates to procure of military caprice, to place distinctly before our readers the points on which it turns. [Here follows the charge and specification, see page 193.] the President of the United Conditions with | taching to this question, considered as one of the release of Mr. Vallandigham. The opinions of the undersigned, touching the questions involved in these propositions, are well known, have been many times publicly expressed, are sufficiently manifested in the resolutions of the convention which they represent, and they cannot suppose that the President expects that they will seek the discharge of Mr. Vallandigham by a pledge, implying not only an imputation upon their own sincerity and fidelity as citizens of the United States, but also carrying with it by implication a concession of the legality of his arrest, trial, and banishment, against which they, and the convention they represent, have solemnly protested. And while they have asked the revocation of the order of banishment not as a favor, but as a right, due to the people of Ohio, and with a view to avoid the possibility of conflict or disturbance of the public tranquility, they do not do this, nor does Mr. Vallandigham desire it, at any sacrifice of their dignity or self-respect. The idea that such a pledge as that asked from the undersighed would secure the public safety sufficiently to compensate for any mistake of the President in discharging Mr. Vallandigham is, in their opinion, a mere evasion "It will thus be seen that the charge and the specification, even if entirely sustained by the evidence, (as to which, in this inquiry, we raise no question,) seek to convict Mr. Vallandigham, a citizen of Ohio, of 'giving aid and comfort to the enemy.' lation of Congress, been made expressly cog"Now, this offence has, by the recent legis nizable by the Courts of the United States. This will appear from the following statute, being "An Act to suppress insurrection, to punish treason and rebellion, and confiscate the property of rebels, and for other purposes, approved July 17, 1862, and found in vol. 12th, chapter 195, page 589, of the Statutes at Large, as printed by order of Congress. We cite the the sections relative to this topic, as follows "Sec. 2. And be it fhrther enacted, That if any person shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United thereto, or shall engage in or give aid or comfort to any States, or the laws thereof, or shall give aid or comfort such existing rebellion or insurrection, and be convicted thereof, such person shall be punished by imprisonment for ܀܀ a period not exceeding ten years, or by a fine not exceed ing ten thousand dollars, and by the liberation of all his slaves, if any he have; or by both of said punisments, at the discretion of the court. "Sec. 3. And be it further enacted, That every person guilty of either of the offences described in this act shall be forever incapable and disqualified to hold any office under the United States." "The tribunal to take cognizance of such cases and questions distinctly appears from the concluding section of this statute, as follows: "Sec. 14. And be it further enacted, That the courts of the United States shall have full power to institute pro*ceedings, make orders and decrees, issue process, and do all other things necessary to carry this act into effect"" "This is conclusive as to the jurisdiction of the courts of the United States, and of them alone, over the offence alleged to have been committed by Mr. Vallandigham. "But the last Congress did not stop here. As if to shut the door against any such proceedings as those instituted by Gen. Burnside, it passed an act, approved March 3d, 1863, expressly "relating to habeas corpus and regulating judicial proceedings in certain cases." "The sections of this act relevant to the case of Mr. Vallandigham may be found on page 755 of the volume of the Statutes at Large as just printed by order of Congress, and are as follows. [See this law on p. 109. that Congress passed the act approved on the 3d of March last, and the sections of which, so far as they relate to this case, we have cited above. The intervention of a court-martial, illegally charged with the trial of a citizen, of Mr. Vallandigham, who, while deprived of does not alter the nature of the imprisonment his liberty, must be regarded in law as one "imprisoned by the order or authority of the President, acting through the Department of War." "If it be true, as is said, that Mr. Vallandig ham has been imprisoned in Fort Warren by order of Gen. Burnside, confirming the sentence of the court martial illegally charged with the trial of a citizen for an offence made cognizable by the courts, it follows that Mr. Vallandigham is now held as a "state or political prisoner," within the terms of the act of March 3d, 1863, and it will therefore be the duty, as we doubt not it will be the pleasure, of Mr. Secretary Stanton to report the name of Mr. Vallandigham to the Judge of the United States Circuit or District Court which has local and legal jurisdiction of the offence for which Mr. Vallandigham is now irregularly detained, that he may be put on trial according to the statutes made and provided for precisely such offences as he is alleged to have committed. His conviction, under such circumstances, would carry with it the sanction of law, and as such would receive the assent of law abiding citizens, and be a terror to evil doers." PERSONAL AND LEGAL RIGHTS. "The reader can easily educe from these provisions the law of the question raised by the arrest of Gen. Burnside. They will perceive that proceedings under the writ of habeas corpus are to be suspended by the courts when ever and wherever the privilege of this writ has been suspended by the President, which is not the case in the State of Ohio. Judge Leavitt, in refusing to grant the writ sued out in behalf of Mr. Vallandigham, stated that he had not seen this law, which was cited in court by Mr. Pugh, the attorney of Mr. Vallandigham We infer from this fact that Judge Leavitt does not deem it necessary to have a knowledge of the laws which it is his sworn duty to administer, or that his means of procuring information under this head are more limited than those 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 may be his best excuse for not doing his duty under them. "And when a judge of the United States is found ignorant of the legislation of Congress on this head, surely Gen. Burnside may be excused for not knowing that Congress, by the act of July 17th, 1862, had expressly provided for the trial by the courts of the offence he alleges against Mr Vallandigham. Nor is it any answer to say, as Gen. B. urges in his statement made to the Judge, that "we are in a state of civil war, and an emergency is upon us which requires the operations of some power that moves more quickly than the civil," DANIEL WEBSTER thus defines the prerogatives of the people, in times of peace, and in times of war: nation. It is not drawn into controversy. |