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A recurrence to the paper will show you that I have not expressed the opinion you suppose. I expressed the opinion that the Constitution is different in its application in cases of rebellion or invasion, involving the public safety, from what it is in times of profound peace and public security; and this opinion I adhere to, simply because by the Constitution itself things may be done in the one case which may not be done in the other. I dislike to waste a word on a merely personal point, but I must respectfully assure you that you will find yourselves at fault should you ever seek for evidence to prove your assumption that I “opposed in discussions before the people the policy of the Mexican war.” You say: “Expunge from the Constitution this limitation upon the power of Congress to suspend the writ of habeas corpus, and yet the other guarantees of personal liberty would remain unchanged.” Doubtless, if this clause of the Constitution, improperly called, as I think, a limitation upon the power of Congress, were expunged, the other guar antees would remain the same; but the question is, not how those guarantees would stand with that clause out of the Constitution, but how they stand with that clause remaining in it, in case of rebellion or invasion, involving the public safety. If the liberty could be indulged in expunging that clause, letter and spirit, I really think the constitutional argument would be with you. My general view on this question was stated in the Albany response, and hence I do not state it now. I only add that, as seems to me, the benefit of the writ of habeas corpus is the great means through which the guarantees of personal liberty are conserved and made available in the last resort; and corroborative of this view is the fact that Mr. Wallandigham, in the very case in question, under the advice of able lawyers, saw not where else to go but to the habeas corpus. But by the Constitution the benefit of the writ of habeas corpus itself may be suspended, when, in case of rebellion or invasion, the public safety may require it. You ask, in substance, whether I really claim that I may override all the guaranteed rights of individuals, on the plea of conserving the public safety—when I may choose to say the public safety requires it. This question, divested of the phraseology calculated to represent me as struggling for an arbitrary personal preroragtive, is either 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. The Constitution contemplates the question as likely to occur for decision, but it does not expressly declare who is to decide it. By necessary implication, when rebellion or invasion comes, the decision is to be made from time to time; and I think the man whom, for the time, the people have, under the Constitution, made the commander-in-chief of their army and navy, is the man who holds the power and bears the responsibility of making it. If he uses the power justly, the same people will probably justify him; if he abuses it, he is in their hands to be dealt with by all the modes they have reserved to themselves in the Constitution. 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 prinishments 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. Wallandigham, 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 trial 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. Wallandigham'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. I am unable to perceive an insult to Ohio in the case of Mr. Wallandigham. Quite surely nothing of this sort was or is intended. I was wholly unaware that Mr. Wallandigham was, at the time of his arrest, a candidate for the Democratic nomination of governor, until so informed by your reading to me the resolutions of the convention. I am grateful to the State of Ohio for many things, especially for the brave soldiers and officers she has given in the present national trial to the armies of the Union. You claim, as I understand, that according to my own position in the Albany response, Mr. Wallandigham should be released; and this because, as you claim, he has not damaged the military service by discouraging enlistments, encouraging desertions, or otherwise; and that if he had, he should have been turned over to the civil authorities under the recent acts of Congress. I certainly do not know that Mr. Wallandigham has specifically and by direct language advised against enlistinents and in favor of desertions and resistance to drafting. We all know that combinations, armed in some instances, to resist the arrest of deserters, began several months ago; that more recently the like has appeared in resistance to the enrolment preparatory to a draft; and that quite a number of assassinations have occurred from the same animus. These had to be met by military force, and this again has led to bloodshed and death. And now, under a sense of responsibility more weighty and enduring than any which is merely official, I solemnly declare my belief that this hindrance of the military, including maiming and murder, is due to the cause in which Mr. Wallandigham has been engaged, in a greater degree than to any other cause; and it is due to him personally in a greater degree than to any other man. These things have been notorious, known to all, and of course known to Mr. Wallandigham. Perhaps I would not be wrong to say they originated with his especial friends and adherents. With perfect knowledge of them he has frequently, if not constantly, made speeches in Congress and before popular assemblies; and if it can be shown that, with these things staring him in the face, he has ever uttered a word of rebuke or counsel against them, it will be a fact greatly in his favor with me, and of which, as yet, I am totally ignorant. When it is known that the whole burden 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 counselled directly in favor of it. With all this before their eyes, the convention you represent have nominated Mr. Wallandigham for governor of Ohio, and both they and you have declared the purpose to sustain the national Union by all constitutional means, but, of course, they and you, in common, reserve to yourselves to decide what are constitutional means, and, unlike the Albany meeting, 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, encourages 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. If 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: 1. That there is now rebellion 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 any thing which, in his own judgment, will tend to hinder the increase, or favor the decrease, or lessen the efficiency of the army and 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 navy, while engaged in the effort to suppress the rebellion, paid, fed, clad, and otherwise well provided for and supported. And with the further understanding that upon receiving the letter and names thus indorsed, I will cause them to be published, which publication shall be, within itself, a revocation of the order in relation to Mr. Wallandigham. It will not escape observation that I consent to the release of Mr. Wallandigham 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 other influential gentlemen 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. Wallandigham to return, so that, on the whole, the public safety will not have suffered by it. Still, in regard to Mr. Wallandigham and all others, I must hereafter, as heretofore, do so much as the public service may seem to require. I have the honor to be respectfully, yours, &c., A. LINCOLN.
The canvass throughout the summer was very animated. As a matter of course, the opponents of the Administration in Ohio, as elsewhere throughout the country, made this matter of arbitrary arrests a very prominent point of attack. Special stress was laid upon the fact that instead of acting directly and upon his own responsibility in these cases, the President left them to the discretion of military commanders in the several departments. This was held to be in-violation of the law of Congress which authorized the President to suspend the writ of habeas corpus, but not to delegate that high prerogative. To meet this objection, therefore, and also in order to establish a uniform mode of action on the subject, the President issued the following
Whereas, The Constitution of the United States has ordained 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; and, whereas, a rebellion was existing on the 3d day of March, 1863, which rebellion is still existing; and, whereas, by a statute which was approved on that day, it was enacted by the Senate and House of Representatives of the United States, in Congress assembled, that during the present insurrection the President of the United States, whenever, in his judgment, the public safety may require, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof; and, whereas, in the judgment of the President the public safety does require that the privilege of the said writ shall now be suspended throughout the United States in cases where, by the authority of the President of the United States, military, naval and civil officers of the United States, or any of them, hold persons under their command or in their custody, either as prisoners of war, spies, or aiders or abettors of the enemy, or officers, soldiers, or seamen enrolled, drafted, or mustered, or enlisted in, or belonging to the land or naval forces of the United States, or as deserters therefrom,