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

[377] at the time of invasion or insurrection which would not be required by the occasion in time of peace, you assume that any thing whatever, even though not expressed by the Constitution, may be done on the occasion of insurrection or invasion which the President may choose to say is required by the public safety. In plainer terms, because the writ of habeas corpus may be suspended at the time of invasion or insurrection, you infer that all other provisions of the Constitution having in view the protection of the life, liberty, and property of the citizen may be in like manner suspended. The provision relating to the writ of habeas corpus, being contained in the first article of the Constitution, the purpose of which is to define the powers delegated to Congress, has no connection in language with the declaration of rights as guarantees of personal liberty, contained in the additional and amendatory articles. And inasmuch as the provision relating to habeas corpus expressly provides for its suspension, and the other provisions alluded to do not provide for any such thing, the legal conclusion is, that the suspension of the latter is unauthorized. The provision for the writ of habeas corpus is merely intended to furnish a summary remedy, and not the means whereby personal security is conserved, in the final resort; while the other provisions are guarantees of personal rights, the suspension of which puts an end to all pretence of free government. It is true Mr. Vallandigham applied for a writ of habeas corpus as a summary remedy against oppression. But the denial of this did not take away his right — to a speedy public trial by an impartial jury, or deprive him of his other rights as an American citizen. Your assumption of the right to suspend all the constitutional guarantees of personal liberty, and even of the freedom of speech and of the press, because the summary remedy of habeas corpus may be suspended, is at once startling and alarming to all persons desirous of preserving free government in this country.

The inquiry of the undersigned, whether “you. hold that the rights of every man throughout this vast country, in time of invasion or insurrection, are subject to be annulled, whenever you may say that you consider the public safety requires it,” was a plain question, undisguised by circumlocution, and intended simply to elicit information. Your affirmative answer to this question throws a shade upon the fondest anticipations of the framers of the Constitution, who flattered themselves that they had provided safeguards against the dangers which have ever beset and overthrown free government in other ages and countries. Your answer is not to be disguised by the phraseology that the question “is 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.” Our government was designed to be a government of law, settled and defined, and not of the arbitrary will of a single man. As a safeguard, the powers granted were divided, and delegated to the legislative, executive, and judicial branches of the government, and each made coordinate with the others, and supreme within its sphere, and thus a mutual check upon each other, in case of abuse of power. It has been the boast of the American people that they had a written Constitution, not only expressly defining, but also limiting the powers of the Government, and providing effectual safeguards for personal liberty, security, and property. And to make the matter more positive and explicit, it was provided by the amendatory articles, nine and ten, that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people,” and that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” With this care and precaution on the part of our forefathers, who framed our institutions, it was not to be expected that, at so early a day as this, a claim of the President to arbitrary power, limited only by his conception of the requirements of the public safety, would have been asserted. In derogation of the constitutional provisions making the President strictly an executive officer, and vesting all the delegated legislative power in Congress, your position, as we understand it, would make your will the rule of action, and your declarations of the requirements of the public safety the law of the land. Our inquiry was not, therefore, “simply a question who shall decide, or the affirmation that nobody shall decide what the public safety requires.” Our government is a government of law, and it is the law-making power which ascertains what the public safety requires, and prescribes the rule of action; and the duty of the President is simply to execute the laws thus enacted, and not to make or annul laws. If any exigency shall arise, the President has the power to convene Congress at any time, to provide for it; so that the plea of necessity furnishes no reasonable pretext for any assumption of legislative power.

For a moment contemplate the consequences of such a claim to power. Not only would the dominion of the President be absolute over the rights of individuals, but equally so over the other departments of the government. If he should claim that the public safety required it, he could arrest and imprison a judge for the conscientious discharge of his duties, paralyze the judicial power, or supersede it, by the substitution of courts-martial, subject to his own will, throughout the whole country. If any one of the States, even far removed from the rebellion, should not sustain his plan for prosecuting the war, he could, on this plea of the public safety, annul and set at defiance the State laws and authorities, arrest and imprison the Governor of the State, or the members of the Legislature, while in the faithful discharge of their duties, or he could absolutely control the action, either of Congress or of the Supreme Court, by arresting and imprisoning its members; and, upon the