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Letter to Corning.
No Arrests for Treason.
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 ‘bave 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 the 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 wbenever the devotees of the doctrine should fail to elect a
Letter to Corning.
Schemes of the Rebels.
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, and bad seized many of the United States forts, and had fired upon the United 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 bad been preparing for it for 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 well-pondered reliance with them that, in their own unrestricted efforts to destroy Union, Constitution, and law together, the Government would, in a 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 among 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. Or if, as has happened, the Executive should suspend the writ, without ruinous waste of time, instances of arresting innocent persons might occur, as are always likely to occur in such cases, and then a clamor could be raised in regard to this which might be, at least, of some service to the insurgent cause. It needed no very keen perception to discover this part of the enemy's programme, so soon as, by open hostilities, their machinery was put fairly in
Letter to Corning.
Civil Courts Powerless
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 horsethieves and robbers frequently grow too numerous and power
ful for the ordinary courts of justice. But what comparison, · in numbers, bave 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. erime of which any civil court would take cognizance.
“Ours is a case of rebellion-so called by the resolution 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
Letter to Corning.
A Few Examples
who can not be proved to be guilty of defined crime, 'when, in cases of rebellion or invasion, the public safety may require it.' This is precisely our present case—a case of rebellion, wherein the public safety does require the suspension. Indeed, arrests by process of courts, and arrests in cases of rebellion, do not proceed altogether upon the same basis. The former is directed at the small percentage of ordinary and continuous perpetration of crime; while the latter is directed at sudden and extensive uprisings against the Government, wbich 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 wbat 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, can not be misunderstood. If not hindered, he is sure to help the enemy; much more, if he talks ambignously—talks for his country with “buts,' and 'ifs' and 'ands.' Of how little value the constitutional provisions I have quoted will be rendered, if arrests shall never be made until defined crimes shall have been committed, may be illustrated by a few notable examples. General Jobn C. Breckinridge, General Robert E. Lee, General Joseph E. Johnston, General John B. Magruder, General William B. Preston, General Simon B. Buckner, and Commodore Franklin Buchanan, now occupying the very highest places in the rebel war service, were all within the power of the Government since the rebellion began, and were nearly as well known to be traitors then as now. Unquestionably, if we had seized and held them, the insurgent cause would be much weaker. But no one of them had then committed any crime defined by 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
Letter to Corning.
Where Arrests shvuld be Made.
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 uncoostitutional in localities where rebellion or insurrection does not actually exist. They insist that such arrests shall not be made 'outside of the lines of necessary military occupation and the scenes of insurrection.' Inasmuch, however, as the Constitution itself makes no such distinction, I am unable to believe that there is any such constitutional distinction. I concede that the class of arrests complained of can be constitutional only when, in cases of rebellion or invasion, the public safety may require them; and I insist that in such cases they are Constitutional wherever the public safety 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 particular 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.' Nou, 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