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.

This

"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. 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 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, 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 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 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

age desertions from the army; and to leave the Rebellion without an adequate military force to suppress it. He was not arrested because he was damaging the political prospects of the Administration, or the personal interests of the commanding General, but because he was damaging the army, upon the existence and vigor of which the life of the nation depends. He was warring upon the military; and this gave the military constitutional jurisdiction to lay hands upon him. If Mr. Vallandigham was not damaging the military power of the country, then his arrest was made on mistake of fact, which I would be glad to correct on reasonably satisfactory evidence.

"I understand the meeting, whose resolutions I am considering, to be in favor of suppressing the Rebellion by military force -by armies. Long experience has shown that armies. cannot be maintained unless desertions shall be punished by the severe penalty of death. The case requires, and the law and the Constitution sanction, this punishment. Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? This is none the less injurious when effected by getting a father, or brother, or friend, into a public meeting, and there working upon his feelings till he is persuaded to write the soldier boy that he is fighting in a bad cause, for a wicked Administration of a contemptible Government, too weak to arrest and punish him if he shall desert. I think that, in such a case, to silence the agitator and save the boy is not only constitutional but withal a great

mercy.

"If I be wrong on this question of con

stitutional power, my error lies in believing that certain proceedings are constitutional when, in cases of rebellion or invasion, the public safety requires them, which would not be constitutional when, in the absence of rebellion or invasion, the public safety does not require them in other words, that

the Constitution is not, in its application, in all respects the same, in cases of rebellion or invasion involving the public safety, as it is in times of profound peace and public security. The Constitution itself makes the distinction; and I can no more be persuaded that the Government can constitutionally take no strong measures in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown not to be good food for a well one. Nor am I able to appreciate the danger, apprehended by the

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meeting, that the American people will, by means of military arrests during the Rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and habeas corpus, throughout the indefinite peaceful future, which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics during a temporary illness as to persist in feeding upon them during the remainder of his healthful life.

* * 4

"One of the resolutions expresses the opinion of the meeting that arbitrary arrests will have the effect to divide and distract those who should be united in suppressing the Rebellion; and I am specifically called on to discharge Mr. Vallandigham. I regard this as, at least, a fair appeal to me on the expediency of exercising a constitutional power which I think exists. In response to such appeal, I have to say, it gave me pain when I learned that Mr. Vallandigham had been arrested—that is, I was pained that there should have seemed to be a necessity for arresting him-and that it will afford me great pleasure to discharge him so soon as I can, by any means, believe the public safety will not suffer by it."

30

The Ohio Democratic Convention, which met " at Columbus, and by acclamation nominated Mr. Vallandigham as their candidate for Governor, passed resolves strongly condemning his banishment as a palpable violation of four specified provisions of the Federal Constitution, and appointed their President and VicePresidents (nearly all Members or ex-Members of Congress) a Committee to address the President in favor of a revocation of the order of banishment. In obeying this direction, that Committee, claiming to utter the sentiments of a majority of the people of Ohio, said: "

"Mr. Vallandigham may differ with the President, and even with some of his own political party, as to the true and most effectual means of maintaining the Constitution and restoring the Union; but this difference of opinion does not prove him to be unfaithful to his duties as an American citizen. If a man, devotedly attached to

31 June 26.

the Constitution and the Union, conscien- | tiously believes that, from the inherent nature of the Federal compact, the war, in the present condition of things in this country, cannot be used as a means of restoring the Union; or that a war to subjugate a part of the States, or a war to revolutionize the social system in a part of the States, could not restore, but would inevitably result in the final destruction of, both the Constitution and the Union, is he not to be allowed the right of an American citizen to appeal to the judgment of the people for a change of policy by the constitutional remedy of the ballot-box?

"The undersigned are unable to agree with you in the opinion you have expressed, that the Constitution is different in time of insurrection or invasion from what it is in time of peace and public security. The Constitution provides for no limitation upon or exceptions to the guaranties of personal liberty, except as to the writ of habeas corpus. Has the President, at the time of invasion or insurrection, the right to engraft limitations or exceptions upon these constitutional guaranties whenever, in his judgment, the public safety requires it?

"True it is, the article of the Constitution which defines the various powers delegated to Congress declares 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.' But this qualification or limitation upon this restriction upon the powers of Congress has no reference to or connection with the other constitutional guaranties of personal liberty. Expunge from the Constitution this limitation upon the power of Congress to suspend the writ of habeas corpus, and yet the other guaranties of personal liberty would remain unchanged."

Mr. Lincoln responded" pungently to this appeal, but less elaborately than he had done to the Albany arraignment; deeming the argument in good part exhausted. On the main point, he said:

"The earnestness with which you insist that persons can only, in times of rebellion, be lawfully dealt with, in accordance with the rules for criminal trials and punishments in times of peace, induces me to add a word to what I said on that point in the Albany response. You claim that men may, if they choose, embarrass those whose duty it is to combat a giant rebellion, and then be dealt with only in turn as if there were

no

rebellion. The Constitution itself rejects this view. The military arrests and detentions which have been made, including those of Mr. Vallandigham, which are not different in principle from the other, have been for prevention, and not for punishment-as injunctions to stay injury, as proceedings to keep the peace-and hence, like proceedings in such cases and for like reasons, they have not been accompanied with indictments, or trials by juries, nor, in a single case, by any punishment whatever, beyond what is purely incidental to the prevention. The original sentence of imprisonment in Mr. Vallandigham's case was to prevent injury to the military service only; and the modification of it was made as a less disagreeable mode to him of securing the same prevention."

In drawing his argument to a close, the President said:

"You omit to state or intimate that, in your 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, ercourages desertion, resistance to the draft, and the 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, may, if you choose, indorse your names upon one of them, and return it thus indorsed to me, with the understanding that those signing are thereby committed to the following propositions, and to nothing else: