Rebellion Record: a Diary of American Events: Documents and Narratives, Volume 7.
Frank Moore, Ed.

[302] 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 supressing the rebellion by military force — by armies. Long experience has shown that armies cannot be maintained unless desertion 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 constitutional 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 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 to not be good food for a well one. Nor am I able to appreciate the danger apprehended by the 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, 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 temporary illness as to persist in feeding upon them during the remainder of his healthful life.

In giving the resolutions that earnest consideration which you request of me, I cannot overlook the fact that the meeting speak as “democrats.” Nor can I, with full respect for their known intelligence, and the fairly presumed deliberation with which they prepared their resolutions, be permitted to suppose that this occurred by accident, or in any way other than that they preferred to designate themselves “democrats” rather than “American citizens.” In this time of national peril I would have preferred to meet you upon a level one step higher than any party platform, because I am sure that, from such more elevated position, we could do better battle for the country we all love than we possibly can from those lower ones where, from the force of habit, the prejudices of the past and selfish hopes of the future, we are sure to expend much of our ingenuity and strength in finding fault with and aiming blows at each other. But since you have denied me this, I will yet be thankful, for the country's sake, that not all democrats have don't so. He on whose discretionary judgment Mr. Vallandigham was arrested and tried is a democrat, having no old party affinity with me; and the judge who rejected the constitutional view expressed in these resolutions, by refusing to discharge Mr. Vallandigham on habeas corpus, is a democrat of better days than these, having received his judicial mantle at the hands of President Jackson. And still more, of all those democrats who are nobly exposing their lives and shedding their blood on the battle-field, I have learned that many approve the course taken with Mr. Vallandigham, while I have not heard of a single one condemning it. I cannot assert that there are none such. And the name of President Jackson recalls an instance of pertinent history. After the battle of New-Orleans, and while the fact that the treaty of peace had been concluded was well known in the city, but before official knowledge of it had arrived, General Jackson still maintained martial or military law. Now, that it could be said the war was over, the clamor against martial law, which had existed from the first, grew more furious. Among other things a Mr. Louaillier published a denunciatory newspaper article. General Jackson arrested him. A lawyer by the name of Morel procured the United States Judge Hall to order a writ of habeas corpus to relieve Mr. Louaillier. General Jackson arrested both the lawyer and the judge. A Mr. Hollander ventured to say of some part of the matter that “it was a dirty trick.” General Jackson arrested him. When the officer undertook to serve the writ of habeas corpus General Jackson took it from him, and sent him away with a copy. Holding the judge in custody a few days, the General sent him beyond the limits of his encampment, and set him at liberty, with an order to remain till the ratification of peace should be regularly announced, or until the British should have left the Southern coast. A day or two more elapsed, the ratification of the treaty of peace was regularly announced, and the judge and others were fully liberated. A few days more, and the judge called General Jackson into court and fined him a thousand dollars for having arrested him and the others named. The General paid the fine, and there the matter rested for nearly thirty years, when Congress refunded principal and interest. The late Senator Douglas, then in the House of Representatives, took a leading part in the debates, in which the constitutional question