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

[307] commissions, and inquisitorial modes of trial for the courts and juries prescribed by the Constitution itself? And if you cannot maintain this, then let us ask where is the justification for the monstrous proceeding in the case of a citizen of Ohio, to which we have called your attention? We know that a recreant judge, whose name has already descended to merited contempt, found the apology on the outside of the supreme and fundamental law of the Constitution. But this is not the foundation on which your superstructure of power is built. We have mentioned the act of the last Congress professing to authorize a suspension of the writ of habeas corpus. This act now demands your special attention, because if we are not greatly in error, its terms and plain intention are directly opposed to all the arguments and conclusions of your communication. That act, besides providing that the habeas corpus may be suspended, expressly commands that the names of all persons theretofore or thereafter arrested by authority of the President, or his cabinet ministers, being citizens of States in which the administration of the laws has continued unimpaired, shall be returned to the courts of the United States for the districts in which such persons reside, or in which their supposed offences were committed; and such return being made, if the next grand jury attending the courts does not indict the alleged offenders, then the judges are commanded to issue an order for their immediate discharge from imprisonment. Now, we cannot help asking whether you have overlooked this law, which most assuredly you are bound to observe, or whether it be your intention to disregard it? Its meaning certainly cannot be mistaken. By it the national Legislature has said that the President may suspend the accustomed writ of habeas corpus, but at the same time it has commanded that all arrests under his authority shall be promptly made known to the courts of justice, and that the accused parties shall be liberated, unless presented by a grand jury according to the Constitution, and tried by a jury in the ancient and accustomed mode. The President may possibly, so far as Congress can give the right, arrest without legal cause or warrant. We certainly deny that Congress can confer this right, because it is forbidden by the higher law of the Constitution. But, waiving that consideration, this statute, by its very terms, promptly removes the proceeding in every case into the courts where the safeguards of liberty are observed, and where the persons detained are to be discharged, unless indicted for criminal offences against the established and ascertained laws of the country.

Upon what foundation, then, permit us to ask, do you rest the pretension that men who are not accused of crime may be seized and imprisoned, or banished at the will and pleasure of the President or any of his subordinates in civil and military positions? Where is the warrant for invading the freedom of speech and of the press? Where the justification for placing the citizen on trial without the presentment of a grand jury and before military commissions? There is no power in this country which can dispense with its laws. The President is as much bound by them as the humblest individual. We pray you to bear in mind, in order that you may duly estimate the feeling of the people on this subject, that for the crime of dispensing with the laws and statutes of Great Britain, our ancestors brought one monarch to the scaffold, and expelled another from his throne.

This power which you have erected in theory is of vast and illimitable proportions. If we may trust you to exercise it mercifully and leniently, your successor, whether immediate or more remote, may wield it with the energy of a Caesar or Napoleon, and with the will of a despot and a tyrant. It is a power without boundary or limit, because it proceeds upon a total suspension of all the constitutional and legal safeguards which protect the rights of a citizen. It is a power not inaptly described in the language of one of your secretaries. Said Mr. Seward to the British minister in Washington: “I can touch a bell on my right hand and order the arrest of a citizen of Ohio. I can touch the bell again and order the imprisonment of a citizen of New-York, and no power on earth but that of the President can release them. Can the Queen of England, in her dominions, do as much?” This is the very language of a perfect despotism, and we learn from you with profound emotion that this is no idle boast. It is a despotism unlimited in principle, because the same arbitrary and unrestrained will or discretion which can place men under illegal restraint, or banish them, can apply the rack or the thumbscrew, can put to torture or to death. Not thus have the people of this country hitherto understood their Constitution. No argument can commend to their judgment such interpretations of the great charter of their liberties. Quick as the lightning's flash, the intuitive sense of freemen perceives the sophistry and rejects the conclusion.

Some other matters which your Excellency has presented demand our notice.

In justification of your course as to Mr. Vallandigham, you have referred to the arrest of Judge Hall at New-Orleans, by order of General Jackson; but that case differs widely from the case of Mr. Vallandigham. New-Orleans was then, as you truly state, under “martial or military law.” This was not so in Ohio, where Mr. Vallandigham was arrested. The administration of the civil law had not been disturbed in that commonwealth. The courts were open, and justice was dispensed with its accustomed promptitude. In the case of Judge Hall, General Jackson in a few days sent him outside the line of his encampments, and set him at liberty; but you have undertaken to banish Mr. Vallandigham from his home. You seem also to have forgotten that General Jackson submitted implicitly to the judgment of the court which imposed the fine upon him; that he promptly paid it; that he enjoined his friends to assent, “as he most freely did, to the decision which had just been pronounced against him.”