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[373] press are to be suspended in time of war, then the essential element of popular government to effect a change of policy in the constitutional mode is at an end. The freedom of speech and of the press is indispensable and necessarily incident to the nature of popular government itself. If any inconvenience or evils arise from its exercise, they are unavoidable.

On this subject you are reported to have said further:

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 order of the general.’ Now, if there be no mistake about this, if there was no other reason for the arrest, then I concede that the arrest was wrong. But the arrest, 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 encourage 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 interest 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 facts, which I would be glad to correct on reasonable satisfactory evidence.

In answer to this, permit the undersigned to say, first, that neither the charge, nor the specifications in support of the charge on which Mr. Vallandigham was tried, impute to him the act of laboring either to prevent the raising of troops or to encourage desertions from the army; secondly, that no evidence on the trial was offered with a view to support, or even tended to support any such charge. In what instance, and by what act did he either discourage enlistments or encourage desertions in the army? Who is the man who was discouraged from enlisting, and who encouraged to desert by any act of Mr. Vallandigham? If it be assumed that perchance some person might have been discouraged from enlisting, or that some person might have been encouraged to desert on account of hearing Mr. Vallandigham's views as to the policy of the war as a means of restoring the Union, would that have laid the foundation for his conviction and banishment? If so, upon the same grounds every political opponent of the Mexican war might have been convicted and banished from the country. When gentlemen of high standing and extensive influence, including your Excellency, opposed, in the discussions before the people, the policy of the Mexican war, were they “warring upon the military,” and did this “give the military constitutional jurisdiction to lay hands upon” them? And, finally, the charge in the specifications upon which Mr. Vallandigham was tried, entitled him to a trial before the civil tribunals according to the express provisions of the late acts of Congress, approved by yourself, July seventeenth, 1862, and March third, 1863, which were manifestly designed to supersede all necessity or pretext for arbitrary military arrests.

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 guarantees 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 guarantees, 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 where, 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 guarantees 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 guarantees of personal liberty would remain unchanged. Although a man might not have a constitutional right to have an immediate investigation made as to the legality of his arrest upon habeas corpus, yet his “right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed,” will not be altered; neither will his right to the exemption from “cruel and unusual punishments ;” nor his right to be secure in his person, houses, papers, and effects, against unreasonable seizures and searches; nor his right not to be deprived of life, liberty, or property, without due process of law; nor his right not to be held to answer for a capital or otherwise infamous offence, unless on presentment or indictment of a grand-jury, be in any wise changed. And certainly the restriction upon the power of Congress to suspend the writ of habeas corpus, in time of insurrection or invasion, could not affect the guarantee that the freedom of speech and of the press shall not be abridged. It is sometimes urged that the proceedings in the civil tribunals are too tardy and ineffective for cases arising in times of insurrection or invasion. It is a full reply to this to say that arrests by civil process may be equally as expeditious and effective as arrests by military orders. True, a summary trial and punishment are not allowed in the civil courts. But if the offender be under arrest and imprisoned, and not entitled to a discharge on a writ of habeas corpus before trial, what more can be required for the purposes of the Government? The idea that all

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Clement L. Vallandigham (7)
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