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Doc. 107.-military arrests.

The following is a correct copy of the correspondence between President Lincoln and the committee appointed by the Ohio Democratic State Convention to ask for permission for Hon. C. L. Vallandigham to return to Ohio :1

The letter to the President.

Washington City, June 26, 1863.
To His Excellency the President of the United States:
The undersigned, having been appointed a committee, under the authority of the resolutions of the State Convention, held at the city of Columbus, Ohio, on the eleventh instant, to communicate with you on the subject of the arrest and banishment of Clement L. Vallandigham, most respectfully submit the following as the resolutions of that Convention, bearing upon the subject of this communication, and ask of your Excellency their earnest consideration. And they deem it proper to state that the Convention was one in which all parts of the State were represented, and one of the most respectable as to character and numbers, and one of the most earnest and sincere in support of the Constitution and Union ever held in that State.

Resolved, 1. That the will of the people is the foundation of all free government; that to give effect to this will, free thought, free speech, and a free press are absolutely indispensable. Without free discussion there is no certainty of sound judgment; without sound judgment there can be no wise government.

2. That it is an inherent and constitutional right of the people to discuss all measures of their government, and to approve or disapprove, as to their best judgment seems right. That they have a like right to propose and advocate that policy which in their judgment is best, and to argue and vote against whatever policy seems to them to violate the Constitution, to impair their liberties, or to be detrimental to their welfare.

3. That these and all other rights guaranteed to them by their constitutions are their rights in time of war as well as in time of peace, and of far more value and necessity in war than in peace, for in peace, liberty, security, and property are seldom endangered; in war they are ever in peril.

4. That we now say to all whom it may concern, not by way of threat, but calmly and firmly, that we will not surrender these rights nor submit to their forcible violation. We will obey the laws ourselves, and all others must obey them.

11. That Ohio will adhere to the Constitution and the Union as the best, it may be the last, hope of popular freedom, and for all wrongs which may have been committed or evils which may exist will seek redress, under the Constitution and within the Union, by the peaceful but powerful agency of the suffrages of a free people.

14. That we will earnestly support every constitutional measure tending to preserve the Union of the States. No men have a greater interest in its preservation than we have-none desire it more; there are none who will make greater sacrifices or endure more than we will to accomplish that end. We are, as we ever have been, the devoted friends of the Constitution and the Union, and we have no sympathy with the enemies of either.

15. That the arrest, imprisonment, pretended trial, and actual banishment of Clement L. Vallandigham, a citizen of the State of Ohio, not belonging to the land or naval forces of the United States, nor to the militia in actual service, by alleged military authority, for no other pretended crime than that of uttering words of legitimate criticism upon the conduct of the Administration in power, and of appealing to the ballot-box for a change of policy-said arrest and military trial taking place where the courts of law are open and unobstructed, and for no act done within the sphere of active military operations in carrying on the war-we regard as a palpable violation of the following provisions of the Constitution of the United States:

1. “Congress shall make no law . . . . abridging the freedom of speech or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

2. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon [372] probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

3. “No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.”

4. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”

And we furthermore denounce said arrest, trial, and banishment, as a direct insult offered to the sovereignty of the people of Ohio, by whose organic law it is declared that no person shall be transported out of the State for any offence committed within the same.

16. That Clement L. Vallandigham was, at the time of his arrest, a prominent candidate for nomination by the Democratic party of Ohio, for the office of Governor of the State; that the Democratic party was fully competent to decide whether he is a fit man for that nomination, and that the attempt to deprive them of that right, by his arrest and banishment, was an unmerited imputation upon their intelligence and loyalty, as well as a violation of the Constitution.

17. That we respectfully, but most earnestly, call upon the President of the United States to restore Clement L. Vallandigham to his home in Ohio, and that a committee of one from each Congressional district of the State, to be selected by the presiding officer of this Convention, is hereby appointed to present this application to the President.

The undersigned, in the discharge of the duty assigned them, do not think it necessary to reiterate the facts connected with the arrest, trial, and banishment of Mr. Vallandigham--they are well known to the President, and are of public history-nor to enlarge upon the positions taken by the Convention, nor to recapitulate the constitutional provisions which it is believed have been contravened; they have been stated at length, and with clearness in the resolutions which have been recited. The undersigned content themselves with brief reference to other suggestions pertinent to the subject.

They do not call upon your Excellency as suppliants, praying the revocation of the order banishing Mr. Vallandigham, as a favor; but, by the authority of a convention representing a majority of the citizens of the State of Ohio, they respectfully ask it as a right due to an American citizen, in whose personal injury the sovereignty and dignity of the people of Ohio, as a free State, have been offended. And this duty they perform the more cordially from the consideration that, at a time of great national emergency, pregnant with danger to our Federal Union, it is all-important that the true friends of the Constitution and the Union, however they may differ as to the mode of administering the Government, and the measures most likely to be successful in the maintenance of the Constitution and the restoration of the Union, should not be thrown into hostile conflict with each other.

The arrest, unusual trial and banishment of Mr. Vallandigham have created widespread and alarming disaffection among the people of the State, not only endangering the harmony of the friends of the Constitution and the Union, and tending to disturb the peace and tranquillity of the State, but also impairing that confidence in the fidelity of your administration to the great landmarks of free government, essential to a peaceful and successful enforcement of the laws in Ohio.

You are reported to have used, in a public communication on this subject, the following language:

It gave me pain when I learned that Mr. Vallandigham had been arrested — that is, I was pained that there should have seemed to be a necessity for arresting him; and that it will afford me great pleasure to discharge him, so soon as I can by any means believe the public safety will not suffer by it.

The undersigned assure your Excellency, from our personal knowledge of the feelings of the people of Ohio, that the public safety will be far more endangered by continuing Mr. Vallandigham in exile than by releasing him. It may be true, that persons differing from him in political views may be found in Ohio and elsewhere, who will express a different opinion. But they are certainly mistaken.

Mr. Vallandigham may differ with the President, and even with some of his own political party, as to the true and most effectual means of maintaining the Constitution and restoring the Union; but this difference of opinion does not prove him to be unfaithful to his duties as an American citizen. If a man devotedly attached to the Constitution and the Union conscientiously believes that from the inherent nature of the Federal compact the war, in the present condition of things in this country, cannot be used as a means of restoring the Union; or that a war to subjugate a part of the States, or a war to revolutionize the social system in a part of the States, could not restore, but would inevitably result in the final destruction of both the Constitution and the Union, is he not to be allowed the right of an American citizen to appeal to the judgment of the people for a change of policy by the constitutional remedy of the ballot-box?

During the war with Mexico many of the political opponents of the administration then in power thought it their duty to oppose and denounce the war, and to urge before the people of the country that it was unjust, and prosecuted for unholy purposes. With equal reason it might have been said of them that their discussions before the people were calculated to discourage enlistments, “to prevent the raising of troops,” and to induce desertions from the army and leave the Government without an adequate military force to carry on the war. If the freedom of speech and of the [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 [374] the constitutional guarantees of personal liberty are suspended throughout the country at a time of insurrection or invasion in any part of it, places us upon a sea of uncertainty, and subjects the life, liberty, and property of every citizen to the mere will of a military commander, or what he may say that he considers the public safety requires. Does your Excellency wish to have it understood that 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?

You are further reported as having said that the constitutional guarantees of personal liberty have “no application to the present case we have in hand, because the arrests complained of were not made for treason — that is, not for the treason defined in the Constitution, and upon the conviction of which the punishment is death-nor yet were they made to hold persons to answer for capital or otherwise infamous crime; nor were the proceedings following in any constitutional or legal sense ‘criminal prosecutions.’ The arrests were made on totally different grounds, and the proceedings following accorded with the grounds of the arrests,” etc.

The conclusion to be drawn from this position of your Excellency is, that where a man is liable to a “criminal prosecution,” or is charged with a crime known to the laws of the land, he is clothed with all the constitutional guarantees for his safety and security from wrong and injustice; but that, where he is not liable to a “criminal prosecution,” or charged with any crime known to the laws, if the President or any military commander shall say that he considers that the public safety requires it, this man may be put outside of the pale of the constitutional guarantees, and arrested without charge of crime, imprisoned without knowing what for, and any length of time, or be tried before a court-martial and sentenced to any kind of punishment, unknown to the laws of the land, which the President or the military commander may see proper to impose. Did the Constitution intend to throw the shield of its securities around the man liable to be charged with treason as defined by it, and yet leave the man, not liable to any such charge, unprotected by the safeguards of personal liberty and personal security? Can a man not in the military or naval service, nor within the field of the operations of the army, be arrested and imprisoned without any law of the land to authorize it? Can a man thus, in civil life, be punished without any law defining the offence and prescribing the punishment? If the President or a court-martial may prescribe one kind of punishment unauthorized by law, why not any other kind? Banishment is an unusual punishment and unknown to our laws. If the President has a right to prescribe the punishment of banishment, why not that of death and confiscation of property? If the President has the right to change the punishment prescribed by the court-martial, from imprisonment to banishment, why not from imprisonment to torture upon the rack, or execution upon the gibbet?

If an indefinable kind of constructive treason is to be introduced and engrafted upon the Constitution, unknown to the laws of the land, and subject to the will of the President whenever an insurrection or invasion shall occur in any part of this vast country, what safety or security will be left for the liberties of the people? The constructive treasons that gave the friends of freedom so many years of toil and trouble in England, were inconsiderable compared to this. The precedents which you make will become a part of the Constitution for your successors, if sanctioned and acquiesced in by the people now.

The people of Ohio are willing to cooperate zealously with you in every effort, warranted by the Constitution, to restore the Union of the States; but they cannot consent to abandon those fundamental principles of civil liberty which are essential to their existence as a free people.

In their name, we ask that, by a revocation of the order of his banishment, Mr. Vallandigham may be restored to the enjoyment of those rights of which they believe he has been unconstitutionally deprived.

We have the honor to be, respectfully yours, etc.,

M. Birchard, Chairman, Nineteenth District. David A. Houk, Secretary, Third District. George Bliss, Fourteenth District. T. W. Bartley, Eighth District. W. J. Gordon, Eighteenth District. John O'Neill, Thirteenth District. C. A. White, Sixth District. W. E. Finck, Twelfth District. Alexander long, Second District. J. W. White, Sixteenth District. James R. Morris, Fifteenth District. George S. Converse, Seventh District Warren P. Noble, Ninth District. George H. Pendleton, First District. W. A. Hutchins, Eleventh District. Abner L. Backus, Tenth District. J. F. Mckinney, Fourth District. F. C. Le Blond, Fifth District. Louis Schaffer, Seventeenth District.

The reply.

gentlemen: The resolutions of the Ohio Democratic State Convention, which you present me, together with your introductory and closing remarks, being in position and argument mainly the same as the resolutions of the Democratic meeting at Albany, New-York, I refer you to my response to the latter as meeting most of [375] the points in the former. This response you evidently used in preparing your remarks, and I desire no more than that it be used with accuracy. In a single reading of your remarks, I only discovered one inaccuracy in matter, which I suppose you took from that paper. It is where you say: “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.” A recurrence to the paper will show you that I have not expressed the opinion you suppose. I expressed the opinion that the Constitution is different in its application in cases of rebellion or invasion, involving the public safety, from what it is in times of profound peace and public security; and this opinion I adhere to, simply because by the Constitution itself things may be done in the one case which may not be done in the other.

I dislike to waste a word on a merely personal point, but I must respectfully assure you that you will find yourselves at fault should you ever seek for evidence to prove your assumption that I “opposed in discussions before the people the policy of the Mexican war.”

You say: “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.” Doubtless if this clause of the Constitution, improperly called, as I think, a limitation upon the power of Congress, were expunged the other guarantees would remain the same; but the question is, not how those guarantees would stand, with that clause out of the Constitution, but how they stand with that clause remaining in it, in cases of rebellion or invasion, involving the public safety. If the liberty could be indulged of expunging that clause, letter and spirit, I really think the constitutional argument. would be with you. My general view on this question was stated in the Albany response, and hence I do not state it now. I only add that, as seems to me, the benefit of the writ of habeas corpus is the great means through which the guarantees of personal liberty are conserved and made available in the last resort; and corroborative of this view, is the fact, that Mr. Vallandigham, in the very case in question, under the advice of able lawyers, saw not where else to go but to the habeas corpus. But by the Constitution the benefit of the writ of habeas corpus itself may be suspended when in cases of rebellion or invasion the public safety may require it.

You ask in substance, whether I really claim that I may override all the guaranteed rights of individuals, on the plea of conserving the public safety-when I may choose to say the public satety requires it. This question, divested of the phraseology, calculated to represent me as struggling for an arbitrary personal prerogative, is either 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. The Constitution contemplates the question as likely to occur for decision, but it does not expressly declare who is to decide it. By necessary implication, when rebellion or invasion comes, the decision is to be made, from time to time; and I think the man whom, for the time, the people have, under the Constitution, made the commander-in-chief of their army and navy, is the man who holds the power and bears the responsibility of making it. If he uses the power justly, the same people will probably justify him; if he abuses it, he is in their hands, to be dealt with by all the modes they have reserved to themselves in the Constitution.

The earnestness with which you insist that persons can only in times of rebellion be lawfully dealt with, in accordance with the rules for criminal trials and punishments in times of peace, induces me to add a word to what I said on that point in the Albany response. You claim that men may, if they choose, embarrass those whose duty it is to combat a giant rebellion, and then be dealt with only in turn, as if there were no rebellion. The Constitution itself rejects this view. The military arrests and detentions which have been made, including those of Mr. Vallandigham, which are not different in principle from the other, have been for prevention and not for punishment--as injunctions to stay injury — as proceedings to keep the peace-and hence, like proceedings in such cases, and for like reasons, they have not been accompanied with indictments, or trials by juries, nor, in a single case, by any punishment whatever, beyond what is purely incidental to the prevention. The original sentence of imprisonment in Mr. Vallandigham's case was to prevent injury to the military service only, and the modification of it was made as a less disagreeable mode to him of securing the same prevention.

I am unable to perceive an insult to Ohio in the case of Mr. Vallandigham. Quite surely, nothing of the sort was or is intended. I was wholly unaware that Mr. Vallandigham, was, at the time of his arrest, a candidate for the Democratic nomination for Governor, until so informed by your reading to me resolutions of the Convention. I am grateful to the State of Ohio for many things, especially for the brave soldiers and officers she has given, in the present national trial, to the armies of the Union.

You claim, as I understand, that, according to my own position in the Albany response, Mr. Vallandigham should be released; and this because, as you claim, he has not damaged the military service by discouraging enlistments, encouraging desertions, or otherwise; and that if he had, he should have been turned over to the civil authorities, under recent acts of Congress. I certainly do not know that Mr. Vallandigham has specifically, and by direct language, advised against enlistments, and in favor of desertion andresistance to drafting. We all know that combinations, armed, in some instances, to resist the arrest of deserters, began several months ago; that more recently the like has appeared in resistance [376] to the enrolment, preparatory to a draft; and that quite a number of assassinations have occurred from the same animus. These had to be met by military force, and this again has led to bloodshed and death. And now, under a sense of responsibility more weighty and enduring than any which is merely official, I solemnly declare my belief that this hindrance of the military, including maiming and murder, is due to the course in which Mr. Vallandigham has been engaged, in a greater degree than to any other cause; and is due to him personally in a greater degree than to any other one man. These things have been notorious, known to all, and of course known to Mr. Vallandigham. Perhaps I would not be wrong to say they originated with his especial friends and adherents. With perfect knowledge of them, he has frequently, if not constantly, made speeches in Congress and before popular assemblies; and if it can be shown that with these things staring him in the face he has ever uttered a word of rebuke or counsel against them, it will be a fact greatly in his favor with me, and one of which, as yet, I am totally ignorant. When it is known that the whole burden of his speeches has been to stir up men against the prosecution of the war, and that in the midst of resistance to it he has not been known in any instance to counsel against such resistance, it is next to impossible to repel the inference that he has counselled directly on favor of it. With all this before their eyes, the Convention you represent have nominated Mr. Vallandigham for Governor of Ohio; and both they and you have declared the purpose to sustain the national Union by all constitutional means. But of course they and you, in common, reserve to yourselves to decide what are constitutional means, and, unlike the Albany meeting, you omit to state or intimate that in your opinion an army is a constitutional means of saving the Union against a rebellion, or even to intimate that you are conscious of an existing rebellion being in progress, with the avowed object of destroying that very Union. At the same time your nominee for Governor, in whose behalf you appeal, is known to you and to the world to declare against the use of an army to suppress the rebellion. Your own attitude, therefore, encourages desertion, resistance to the draft and the like, because it teaches those who incline to desert and to escape the draft to believe it is your purpose to protect them, and to hope that you will become strong enough to do so. After a short personal intercourse with you, gentlemen of the committee, I cannot say I think you desire this effect to follow your attitude; but I assure you that both friends and enemies of the Union look upon it in this light. It is a substantial hope, and by consequence a real strength to the enemy. It is a false hope, and one which you would willingly dispel. I will make the way exceedingly easy. I send you duplicates of this letter, in order that you or a majority of you may, if you choose, indorse your names upon one of them, and return it thus indorsed to me, with the understanding that those signing are thereby committed to the following propositions, and to nothing else:

1. That there is a rebellion now in the United States, the object and tendency of which is to destroy the national Union, and that, in your opinion, an army and navy are constitutional means for suppressing that rebellion.

2. That no one of you will do any thing which, in his own judgment, will tend to hinder the increase or favor the decrease, or lessen the efficiency of the army or navy, while engaged in the effort to suppress that rebellion; and

3. That each of you will, in his sphere, do all he can to have the officers, soldiers, and seamen of the army and navy, while engaged in the effort to suppress the rebellion, paid, fed, clad, and otherwise well provided and supported.

And with the further understanding that, upon receiving the letter and names thus indorsed, I will cause them to be published, which publication shall be, within itself, a revocation of the order in relation to Mr. Vallandigham.

It will not escape observation that I consent to the release of Mr. Vallandigham upon terms not embracing any pledge from him or from others, as to what he will or will not do. I do this because he is not present to speak for himself, or to authorize others to speak for him; and hence I shall expect that on returning he would not put himself practically in antagonism with the position of his friends. But I do it chiefly because I thereby prevail on other influential gentlemen of Ohio to so define their position as to be of immense value to the army, thus more than compensating for the consequences of any mistake in allowing Mr. Vallandigham to return, so that on the whole the public safety will not have suffered by it. Still, in regard to Mr. Vallandigham and all others, I must hereafter, as heretofore, do so much as the public safety may seem to require. I have the honor to be respectfully yours, etc.

The Rejoinder.

New-York City, July 1, 1863.
To His Excellency the President of the United States:
sir: Your answer to the application of the undersigned for a revocation of the order of banishment of Clement L. Vallandigham requires a reply, which they proceed, with as little delay as practicable, to make.

They are not able to appreciate the force of the distinction you make between the Constitution and the application of the Constitution, whereby you assume that powers are delegated to the President at the time of invasion or insurrection in derogation of the plain language of the Constitution. The inherent provisions of the Constitution remaining the same in time of insurrection or invasion as in time of peace, the President can have no more right to disregard their positive and imperative requirements at the former time than at the latter. Because some things may be done by the terms of the Constitution [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 [378] same ground, he could suspend the elective franchise, postpone the elections, and declare the perpetuity of his high prerogative. And neither the power of impeachment, nor the elections of the people, could be made available against such concentration of power.

Surely it is not necessary to subvert free government in this country in order to put down the rebellion; and it cannot be done, under the pretence of putting down the rebellion. Indeed, it is plain that your Administration has been weakened, greatly weakened, by the assumption of power not delegated in the Constitution.

In your answer you say to us: “You claim that men may, if they choose, embarrass those whose duty it is to combat a giant rebellion, and then be dealt with in turn only as if there were no rebellion.” You will find yourself at fault if you will search our communication to you, for any such idea. The undersigned believe that the Constitution and laws of the land, properly administered, furnish ample power to put down an insurrection, without the assumption of powers not granted. And if existing legislation be inadequate, it is the duty of Congress to consider what further legislation is necessary, and to make suitable provision by law.

You claim that the military arrests made by your Administration are merely preventive remedies “as injunctions to stay injury, or proceedings to keep the peace, and not for punishment.” The ordinary preventive remedies alluded to are authorized by established law, but the preventive proceedings you institute have their authority merely in the will of the Executive or that of officers subordinate to his authority. And in this proceeding, a discretion seems to be exercised as to whether the prisoner shall be allowed a trial; or even be permitted to know the nature of the complaint alleged against him, or the name of his accuser. If the proceeding be merely preventive, why not allow the prisoner the benefit of a bond to keep the peace? But if no offence has been committed, why was Mr. Vallandigham tried, convicted, and sentenced by a court-martial? And why the actual punishment, by imprisonment or banishment, without the opportunity of obtaining his liberty in the mode usual in preventive remedies, and yet say, it is not for punishment?

You still place Mr. Vallandigham's conviction and banishment upon the ground that he had damaged the military service by discouraging enlistments and encouraging desertions, etc.; and yet you have not even pretended to controvert our position, that he was not charged with, tried or convicted for any such offence before the courtmartial.

In answer to our position that Mr. Vallandigham was entitled to a trial in the civil tribunals, by virtue of the late acts of Congress, you say: “I certainly do not know that Mr. Vallandigham has specifically and by direct language adoised against enlistments and in favor of desertions and resistance to drafting,” etc.; and yet, in a subsequent part of your answer, after speaking of certain disturbances which are alleged to have occurred in resistance of the arrest of deserters, and of the enrolment preparatory to the draft, and which you attribute mainly to the course Mr. Vallandigham has pursued ; you say that he has made speeches against the war in the midst of resistance to it; and that “he has never been known, in any instance, to counsel against such resistance,” and that “it is next to impossible to repel the inference that he has counselled directly in faror of it.” Permit the undersigned to say that your information is most grievously at fault. The undersigned have been in the habit of hearing Mr. Vallandigham speak before popular assemblages, and they appeal with confidence to every truthful person who has ever heard him, for the accuracy of the declaration that he has never made a speech before the people of Ohio in which he has not counselled submission and obedience to the laws and the Constitution, and advised the peaceful remedies of the judicial tribunals and of the ballot-box for the redress of grievances, and for the evils which afflict our bleeding and suffering country. And, were it not foreign to the purposes of this communication, we would undertake to establish, to the satisfaction of any candid person, that the disturbances among the people, to which you allude, in opposition to the arrest of deserters and the draft, have been occasioned mainly by the measures, policy, and conduct of your Administration, and the course of its political friends. But if the circumstantial evidence exists, to which you allude, which makes “it next to impossible to repel the inference that Mr. Vallandigham has counselled directly in favor” of this resistance, and that the same has been mainly attributable to his conduct, why was he not turned over to the civil authorities to be tried under the late acts of Congress? If there be any foundation in fact for your statements implicating him in resistance to the constituted authorities, he is liable to such prosecution. And we now demand, as a mere act of justice to him, an investigation of this matter before a jury of his country; and respectfully insist that fairness requires, either that you retract these charges which you make against him, or that you revoke your order of banishment and allow him the opportunity of an investigation before an impartial jury.

The committee do not deem it necessary to repel at length the imputation that the attitude of themselves or of the Democratic party in Ohio “encourages desertions, resistance to the draft, and the like,” or tends to the breach of any law of the land. Suggestions of that kind are not unusual weapons in our ordinary political contests. They rise readily in the minds of politicians heated with the excitement of partisan strife. During the two years in which the Democratic party of Ohio has been constrained to oppose the policy of the Administration and to stand up in defence of the Constitution and of personal rights, this charge has been repeatedly made. It has fallen harmless, however, at the feet of those whom it was intended to injure. The committee [379] believe it will do so again. If it were proper to do so in this paper, they might suggest that the measures of the Administration and its changes of policy in the prosecution of the war have been the fruitful sources of discouraging enlistments and inducing desertions, and furnish a reason for the undeniable fact that the first call for volunteers was answered by very many more than were demanded, and that the next call for soldiers will probably be responded to by drafted men alone. The observation of the President in this connection that neither the Convention in its resolutions, nor the committee in its communication, intimate that they “are conscious of an existing rebellion being in progress with the avowed object of destroying the Union,” needs, perhaps, no reply. The Democratic party of Ohio has felt so keenly the condition of the country, and been so stricken to the heart by the misfortunes and sorrows which have befallen it, that they hardly deemed it necessary by solemn resolution, when their very State exhibited everywhere the sad evidences of war, to remind the President that they were aware of its existence.

In the conclusion of your communication, you propose that, if a majority of the committee shall affix their signatures to a duplicate copy of it, which you have furnished, they shall stand committed to three propositions therein at length set forth; that you will publish the names thus signed, and that this publication shall operate as a revocation of the order of banishment. The committee cannot refrain from the expression of their surprise that the President should make the fate of Mr. Vallandigham depend upon the opinion of this committee upon these propositions. If the arrest and banishment were legal, and were deserved; if the President exercised a power clearly delegated, under circumstances which warranted its exercise, the order ought not to be revoked, merely because the committee hold, or express, opinions accordant with those of the President. If the arrest and banishment were not legal, or were not deserved by Mr. Vallandigham, then surely he is entitled to an immediate and unconditional discharge.

The people of Ohio were not so deeply moved by the action of the President, merely because they were concerned for the personal safety or convenience of Mr. Vallandigham, but because they saw in his arrest and banishment an attack upon their own personal rights ; and they attach value to his discharge chiefly, as it will indicate an abandonment of the claim to the power of such arrest and banishment. However just the undersigned might regard the principles contained in the several propositions submitted, by the President, or how much soever they might, under other circumstances, feel inclined to indorse the sentiments contained therein, yet they assure him that they have not been authorized to enter into any bargains, terms, contracts, or conditions with the President of the United States to procure the release of Mr. Vallandigham. The opinions of the undersigned, touching the questions involved in these propositions, are well known, have been many times publicly expressed, and are sufficiently manifested in the resolutions of the Convention which they represent, and they cannot suppose that the President expects that they will seek the discharge of Mr. Vallandigham by a pledge, implying not only an imputation upon their own sincerity and fidelity as citizens of the United States, but also carrying with it by implication a concession of the legality of his arrest, trial, and banishment, against which they, and the Convention they represent, have solemnly protested. And while they have asked the revocation of the order of banishment not as a favor, but as a right, due to the people of Ohio, and with a view to avoid the possibility of conflict or disturbance of the public tranquillity, they do not do this, nor does Mr. Vallandigham desire it, at any sacrifice of their dignity and self-respect.

The idea that such a pledge as that asked from the undersigned would secure the public safety sufficiently to compensate for any mistake of the President in discharging Mr. Vallandigham is, in their opinion, a mere evasion of the grave questions involved in this discussion, and of a direct answer to their demand. And this is made especially apparent by the fact that this pledge is asked in a communication which concludes with an intimation of a disposition on the part of the President to repeat the acts complained of.

The undersigned, therefore, having fully discharged the duty enjoined upon them, leave the responsibility with the President.

M. Birchard, Nineteenth District, Chairman. David Houk, Secretary, Third District. Geo. Bliss, Fourteenth District. T. W. Bartley, Eighth District. W. J. Gordon, Eighteenth District. Jno. O'Neill, Thirteenth District. C. A. White, Sixth District. W. E. Finck, Twelfth District. Alexander long, Second District. Jas. R. Morris, Fifteenth District. Geo. S. Converse, Seventh District. Geo. H. Pendleton, First District. W. A. Hutchins, Eleventh District. A. L. Backus, Tenth District. J. F. Mckinney, Fourth District. J. W. White, Sixteenth District. F. C. Le Blond, Fifth District. Louis Schaffer, Seventeenth District. Warren P. Noble, Ninth District.

1 See Doc. 67, page 298, ante.

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