"Beneath this stone OWEN LOVEJOY lies,

Little in every thing-except in size; [Laughter.]

What though his burly body fills this hole,

Yet through hell's keyhole crept his little soul." [Great laughter.]

PERSONAL LIBERTY.

MILITARY ORDERS AGAINST FREE SPEECH-QUESTION IN MR. VALLANDIGHAM'S CASE.

A FEW days after the arrest of Mr. Vallandigham, at the annual May Convention of the Democracy of Licking County, Ohio, MR. Cox spoke as follows:-Citizens of Licking: In the last Congress you were my constituents. It is proper that I should answer your call to address you; for you should know every reason for every vote I gave as your Representative. I shall not be deterred from this duty to you by any fear from any quarter; nor shall recent events and daily threats provoke me to utter sentiments less patriotic or more immoderate than I have been wont to utter. Come threats, come imprisonment, come torture, or come death itself, my lips shall not be locked. I shall do this to-day, not in the spirit of bravado, not for any sickly desire for martyrdom; but because I respect the law, as the supreme authority and rule of my conduct. If I speak in this spirit, I may bring the policy of the Administration into disrepute, but I shall magnify the Government thereby.

General Hascall, in his order No. 38, has interdicted all such speaking as will make the Administration disreputable; and he has said that General Burnside has approved of that order. I hope this is not true. General Burnside could not have approved of that order, and then have told Judge Leavitt in his return to the habeas corpus in Vallandigham's case, that "if the people do not approve the policy of the Administration, they can change the constitutional authorities of the Government at the proper time and in the proper method." What time and method? At and by the elections provided by law. To this we all agree. No going to jail for saying that. Nor is General Burnside so absurd as to accord to us the privilege of election, without the means to make up our minds as to the policy of men to be voted for; for he goes on to say: "Let them freely discuss the policy in a proper tone." Very good, I agree to that. No bonds for me yet. If therefore by a "proper tone" I should bring the Administration into disrepute, General Burnside will not send me to prison. Indeed, I do not think an improper tone can ever bring any one into disrepute except him who uses it. But General Burnside would stop what he calls "license and intemperate discussion." Had such discussion been prohibited years ago, this war would not be on us now. As to the propriety of stopping that sort of discussion by military arrests, even if they were legal, I dissent; but as to the bad taste and policy of such discussion I should agree. No "offence" in saying that, I trust. The same thing has been said in various ways since men wrote with the stylus, or Cadmus made the alphabet. Indeed, he weakens his cause, who uses an intemperate or licentious tone. Is he therefore to be suppressed? His statements may be falsehoods, his logic fallacies, his principles abhorrent, and his

motives base; all these do not furnish a reason why he should be prohibited from uttering his views. Why, even the New York "Tribune" has said that "our Federal and State Constitutions do not recognize perverse opinions, nor unpatriotic speeches, as grounds of infliction." We must, to be faithful citizens, take the dross with the gold, in the current discussions of the day. Better let the little speck of license remain upon the eye, than put out the orbs of public intelligence, and live in sightless and despotic gloom. The people of this land cannot change their nature nor their education. Much as they may deprecate bad sentiments, they prefer to see them flash like powder innocuously above ground, than, pent up, explode with fearful ruin and combustion. How can the laggard authorities be urged to duty and tyrannical officials be lashed into discretion, especially in time of war, when power tends to play fantastic tricks and aggrandize its importance and function, except by bold discussion? In the Cabinet, in the public Assemblage, in the Court, in the Legislature, among all parties, everywhere, Reason should be allowed a free combat with Error. If Error strikes foul, the public will know how to award the prize. It is in the spirit I have indicated, of decorous and discreet moderation, that I propose to discuss the question, uppermost in your mind, connected with the arrest of Mr. Vallandigham. It is unnecessary for me to denounce his arrest as illegal. I come not to stimulate passion. I ask you to practise the courage of endurance, to the end that we may more speedily have a remedy. No amount of temporary restraint will prevent popular action. As a matter of philosophy, and not as a defiance, I state what you know, that Democratic thought is irrepressibly outspoken; and that for every Democrat restrained, a hundred will leap to his place and court the honors of persecution.

The question involved in Mr. Vallandigham's arrest does not concern him alone. If it is a breach of law, it involves the fate of each and all.

His arrest is a breach of the Constitution, State and Federal, which provides for the security of the people "in their persons, houses, papers, and effects;" which forbids that any one should be held to answer for any crime except by indictment; which protects life, liberty, and property by the processes of law; and which declares for free speech without abridgment. This view is conclusive, but the state of civil war enlarges the discussion.

The question in that view is: Can a citizen, not connected with the army of the United States, remote from the scene of its operations, and in Ohio, where all the laws of the land are yet enforced by constitutional means, be subjected to military arrest, imprisonment, and trial before a military commission and punishment at its discretion, either for offences unknown to the law, or, if known, for which the law has provided a mode of trial and penalty? In other words: In this time of great peril, has the Federal legislature, after two years of war, failed to provide for all its emergencies? and, if it has failed, can the Executive act instantly and beyond the limits of the law, at his discretion? In pursuing these ques tions, I hold:

1. That Congress has provided for the offence alleged against Mr. Vallandigham. In the specifications he is charged with various expres sions, "all of which opinions and sentiments he well knew did aid, com

fort, and encourage those in arms against the Government, and could but induce in his hearers a distrust of their own Government, sympathy for those in arms against it, and a disposition to resist the laws of the land."

In the laws passed by the last Congress, such an offence is made punishable. By an act approved July 17, 1862, to "suppress insurrection,” etc. (U. S. Statutes, p. 589), known as the confiscation act, it is provided (sec. 2) that if any person "shall give aid or comfort to the rebellion or insurrection and be convicted thereof, such person shall be punished" by fine and imprisonment and disqualification for office. In the 14th section, the Courts of the United States are given "full power" to institute all proceedings under the law.

This would be sufficient as to the crime as alleged and the tribunal to try it; but Congress did not stop there. By an act approved March 3, 1863, known as the act relating to the habeas corpus (U. S. Statutes, p. 755, etc.), from which I now read, the President is authorized to suspend the writ of habeas corpus, "in any case throughout the United States, or any part of it." Whenever and wherever the writ is suspended, no military or other officer is bound to answer the writ by the production of the body; but the judge shall, on notice that the prisoner is held under the President's order, suspend all proceedings under the habeas corpus. By the same law the Departments of State and of War are to furnish to the judges of the districts the names of political prisoners who were arrested therein, for civil trial. If the accused are not indicted, the judge is to order a discharge, and the custodian is to execute the order. In case the Departments fail to send such a list to the judges, any citizen may do it and obtain the discharge of the prisoner.

66

re

These laws are in force. They were made by a Republican Congress. They were made for this very exigency. This civil war was in contemplation when they were passed. It was intended by these laws to prevent arbitrary arrests and inquisitorial tribunals of military men. It was intended by them to guarantee an accusatorial trial, openly, with indictment, by a jury selected impartially, and who should return an absolute verdict. It will be remembered that two days after the Emancipation proclamation, to wit, September 24, 1863, the President issued another proclamation subjecting all persons to trial by courts-martial and military commissions" who were found "affording aid and comfort to the rebels." The same proclamation suspended the habeas corpus for all such persons. If, then, you would understand the law of March 3, 1863, member it was intended expressly to ignore the right of the President to issue that proclamation, without authority from Congress. The first section substantially disallows the right of the President to suspend the writ, without the assent of Congress thereto. The other section quoted provides civil trial for those arrested. Would you know the motive which prompted the law of March? Read the debates of the last session. The arbitrary arrests of the last summer were condemned at the last fall elections. In Vermont, in Massachusetts, in New York, in New Jersey, in Iowa, in Ohio everywhere, far and aloof from military precincts, such arrests were made. The names of the victims are familiar. The election operated, as the miracle of old did, to open the prison doors. When, on the first day of the last session, I offered a resolution denouncing these arrests,

and calling on the President to stop them, it was voted down by the Republicans; yet many of their best men refused to sanction such proceedings. Cowan, Browning, Kellogg, and others, felt the necessity of providing for the relief of all civilians from military arrest and trial. They digested this plan of turning them over to the civil authorities for indictment, trial, and punishment, or discharge. Thus was secured, by the last Republican Congress, that penal trial upon which Montesquieu thought "that chiefly the liberty of the citizen depended." Thus was secured that "key-stone of a nation's public law "-a fair penal trial, without which liberty is but a sounding name.

In Ohio there had been no suspension of the writ of habeas corpus. It was, therefore, the duty of Judge Leavitt to see to it that Mr. Vallandingham had the benefit of the writ. The implication of the law I have quoted, required the Judge to issue it. I say nothing of the constitutional right of every one imprisoned, as of course, to have the writ. What business was it of his whether General Burnside would or would not execute it? He must have known the history of this writ of freedom-of this glorious result of the long struggle between law and power. He must have learned that the law had triumphed in the struggle, and that however it might be in France, where an iron rod was the staff of justice, in America and England, at common law, individual liberty and public justice were not empty words to make "earth sick and heaven weary," but practical realities, made so by the independence of the judiciary and the majesty of law.

So long as the writ had not been suspended in Ohio, nor martial law declared, the Judge had no right to refuse it, even to the meanest criminal. Had he allowed it, how do we know but that Gen. Burnside would have taken counsel of the Attorney-General, Mr. Bates, who, as an honest officer, would have advised that Gen. Burnside should either have returned the body, or have complied with the law of March 3, 1863, and have at once notified the Judge that he could not return the body, by reason of the suspension of habeas corpus in Ohio; or, perhaps, the Secretary of War might have handed in the name of Mr. Vallandigham to the Judge for "due process of law," by indictment and trial in obedience to the law of March 3, 1863. By the failure or neglect of Mr. Stanton to comply with his part of the law of March 3, 1863, it is now impossible to comply with its provisions, since Mr. Vallandigham is removed, by the act of our military, outside of its lines. If Mr. Vallandigham's name were placed upon the list sent to Judge Leavitt, it is now too late to afford him the civil trial provided by the Republican Congress. As your representative during the Congress which enacted the laws referred to, I declare to you that the avowed object of that legislation was to save the nation from any more of the disgraceful scenes of the last summer, when citizens were seized without warrant, imprisoned without law, and dismissed without hearing.

In uttering your protest against this infraction of law, fellow citizens, you give the best assurances of your fidelity to the Government. If the present Administration desire to provoke no hostility to the laws; if they would cultivate the respect of the opposition; if they would that the people, North and South, should look to them as the honored ministers of

justice, let them heed the appeals of their own wiser men and journals, and stop instantly this system of unexampled terrorism, which is slowly but surely producing disintegration, distrust, and anarchy in society.

2. But if Vallandigham's case is not included in those provided against by the laws I have quoted, then it is no offence at all, unless it be treason. We know that treason cannot be tried except in pursuance of certain fixed constitutional rules, and that these rules have not been pursued in this case. Where, then, does the chief Executive or his agents get this power of arrest? It is said by its advocates to be an implied power, belonging to the Commander-in-Chief of the army. In this capacity, it is said that he can, in subduing the enemy, use any power in his opinion necessary to that end. If so, then he has no limit but his own will. Such power is purely despotic. True, he has all the power, and no other, of the General-in-Chief of the army, but it is confined to the sphere of actual operations, and all such power is derived from and must be subordinate to the law which creates it. To command the army as its first chief, is not to have supreme control over all citizens, for that belongs to legislation, and the Executive cannot legislate. He cannot erect tribunals. He cannot create offences. He cannot arrest arbitrarily citizens who are not soldiers. Is martial law pleaded? Why, this has not yet been declared over the whole country. Nor does it apply where there is no army or rebellion. It was not applied to Ohio at all, nor to Dayton till after the arrest. Judge Curtis thus refers to this extraordinary power, asserted for the Commander-in-Chief:

"But when the military commander controls the person or property of citizens, who are beyond the sphere of his actual operations in the field, when he makes laws to govern their conduct, he becomes a legislator. Those laws may be made actually operative; obedience to them may be enforced by military power; their purposes may be solely to support and recruit his armies, or to weaken the power of the enemy with whom he is contending. But he is legislator still; and whether his edicts are clothed in the form of proclamations, of military orders, by whatever name they may be called, they are laws. If he have the legislative power conferred on him by the people, it is well. If not, he usurps it.

"He has no more lawful authority to hold all the citizens of the entire country, outside of the sphere of his actual operations in the field, amenable to his military edicts, than he has to hold all the property of the country subject to his military requisitions. He is not the military commander of the citizens of the United States, but of its soldiers."

If what Judge Curtis says be true, the power which has thus arrested one of our citizens, and created an offence, or a strange tribunal to try a real or alleged offence, is usurpation. If Judge Curtis be not mistaken, and if the Republican Supreme Court of Wisconsin are not also mistaken in a similar judgment; if the commentators and jurists of the land are not in error, then Governor Seymour has not overstated the case, when he says such conduct "will not only lead to military despotism, it establishes military despotism."

In Ohio the civil machinery of the State has not stopped. Every part of it was running without jar under the Constitution. The Courts were open, the process of the State unimpeded, not a single pulley, lever, joint, wheel, or cog out of place-all evolving out of harmony, order, peace, and security. Discussion was free; printing unrestricted; meetings public; the ballot-box and all other elements of freedom were unimpaired; when, lo! a citizen is seized in his own house, in the night