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

[305] or his caprice. This extraordinary doctrine you claim to derive wholly from that clause of the Constitution which, in case of invasion or rebellion, permits the writ of habeas corpus to be suspended. Upon this ground your whole argument is based.

You must permit us to say to you, with all due respect, but with the earnestness demanded by the occasion, that the American people will never acquiesce in this doctrine. In their opinion the guarantees of the Constitution which secure to them freedom of speech and of the press, immunity from arrest for offences unknown to the laws of the land, and the right of trial by jury before the tribunals provided by those laws, instead of military commissions and drum-head courts-martial, are living and vital principles in peace and in war, at all times and under all circumstances. No sophistry or argument can shake this conviction, nor will the people require its confirmation by logical sequences and deductions. It is a conviction deeply interwoven with the instincts, the habits, and the education of our countrymen. The right to form opinions upon public measures and men, and to declare those opinions by speech or writing, with the utmost latitude of expression, the right of personal liberty unless forfeited according to established laws, and for offences previously defined by law, the right when accused of crime to be tried where law is administered, and punishment is pronounced only when the crime is legally ascertained; all these are rights instantly perceived without argument or proof. No refinement of logic can unsettle them in the minds of freemen; no power can annihilate them; and no force at the command of any chief magistrate can compel their surrender.

So far as it is possible for us to understand, from your language, the mental process which has led you to the alarming conclusions indicated by your communication, it is this: The habeas corpus is a remedial writ, issued by courts and magistrates to inquire into the cause of any imprisonment or restraint of liberty, on the return of which and upon due examination the person imprisoned is discharged, if the restraint is unlawful, or admitted to bail if he appears to have been lawfully arrested, and is held to answer a criminal accusation. Inasmuch as this process may be suspended in time of war, you seem to think that every remedy for a false and unlawful imprisonment is abrogated; and from this postulate you reach, at a single bound, the conclusion that there is no liberty under the Constitution which does not depend on the gracious indulgence of the Executive only. This great heresy once established, and by this mode of induction there springs at once into existence a brood of crimes or offences undefined by any rule, and hitherto unknown to the laws of this country; and this is followed by indiscriminate arrests, midnight seizures, military commissions, unheard — of modes of trial and punishment, and all the machinery of terror and despotism. Your language does not permit us to doubt as to your essential meaning, for you tell us, that “arrests are made not so much for what has been done, as for what probably would be done.” And, again: “The man who stands by and says nothing when the peril of his government is discussed cannot be misunderstood. If not hindered (of course by arrest) he is sure to help the enemy, and much more if he talks ambiguously, talks for his country with ‘buts’ and ‘ifs’ and ‘ands.’ ” You also tell us that the arrests complained of have not been made “for the treason defined in the Constitution,” nor “for any capital or otherwise infamous crimes, nor were the proceedings following in any constitutional or legal sense criminal prosecutions.” The very ground, then, of your justification is, that the victims of arbitrary arrest were obedient to every law, were guiltless of any known and defined of fence, and therefore were without the protection of the Constitution. The suspension of the writ of habeas corpus instead of being intended to prevent the enlargement of arrested criminals until a legal trial and conviction can be had, is designed, according to your doctrine, to subject innocent men to your supreme will and pleasure. Silence itself is punishable, according to this extraordinary theory, and still more so the expression of opinions, however loyal, if attended with criticism upon the policy of the government. We must respectfully refuse our assent to this theory of constitutional law. We think that men may be rightfully silent if they so choose, while clamorous and needy patriots proclaim the praises of those who wield power; and as to the “buts,” the “ifs,” and the “ands,” these are Saxon words and belong to, the vocabulary of freemen.

We have already said that the intuition of a free people instantly rejects these dangerous and unheard — of doctrines. It is not our purpose to enter upon an elaborate and extended refutation of them. We submit to you, however, one or two considerations, in the hope that you will review the subject with the earnest attention which its supreme importance demands. We say, then, we are not aware that the writ of habeas corpus is now suspended in any of the peaceful and loyal States of the Union. An act of Congress approved by you on the third of March, 1863, authorized the President to suspend it during the present rebellion. That the suspension is a legislative, and not an executive act, has been held in every judicial decision ever made in this country, and we think it cannot be delegated to any other branch of the government. But passing over that consideration, you have not exercised the power which Congress attempted to confer upon you, and the writ is not suspended in any part of the country where the civil laws are in force. Now, inasmuch as your doctrine of the arbitrary arrest and imprisonment of innocent men, in admitted violation of express constitutional guarantees, is wholly derived from a suspension of the habeas corpus, the first step to be taken in the ascent to absolute power, ought to be to make it known to the people that the writ is in fact suspended, to the end that they may know what is