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Doc. 67.-military arrests.

Correspondence in relation to the public meeting at Albany, N. Y.--letter of the committee and resolutions.

Albany, May 19, 1863.
To His Excellency the President of the United States:
the undersigned, officers of a public meeting held at the city of Albany on the sixteenth day of May, instant, herewith transmit to your Excellency a copy of the resolutions adopted at the said meeting, and respectfully request your earnest consideration of them. They seem it proper on their personal responsibility to state that the meeting was one of the most respectable as to numbers and character, and one of the most earnest in the support of the Union ever held in this city.

Yours, with great regard, Erastus Corning, President. Eli Perry, Vice-President. Peter Gansevoort, Vice-President. Peter Monteath, Vice-President. Samuel W. Gibbs, Vice-President. John Niblack, Vice-President. H. W. Mcclellan, Vice-President. Lemuel W. Rodgers, Vice-President. William Seymour, Vice-President. Jeremiah Osborn, Vice-President. William S. Padock, Vice-President. J. B. Sanders, Vice-President. Edward Mulcahy, Vice-President. D. V. N. Radcliffe, Vice-President. William A. Rice, Secretary. Edward Newcomb, Secretary. R. W. Peckham, Jr., Secretary. M. A. Nolan, Secretary. John R. Nessel, Secretary. C. W. Weeks, Secretary.

Resolutions adopted at the meeting held in Albany, N. Y., on the 16th of May, 1863.

Resolved, That the Democrats of New-York point to their uniform course of action during the two years of civil war through which we have passed, to the alacrity which they have evinced in filling the ranks of the army, to their contributions and sacrifices, as the evidence of their patriotism and devotion to the cause of our imperilled country. Never in the history of civil was has a government been sustained with such ample resources of means and men as the people have voluntarily placed in the hands of the Administration.

Resolved, that as Democrats we are determined to maintain this patriotic attitude, and, despite of adverse and disheartening circumstances, to devote all our energies to sustain the cause of the Union, to secure peace through victory, and to bring back the restoration of all the States under the safeguards of the Constitution.

Resolved, That while we will not consent to be misapprehended upon these points, we are determined not to be misunderstood in regard to others not less essential. We demand that the Administration shall be true to the Constitution; [299] shall recognize and maintain the rights of the States and the liberties of the citizen; shall everywhere, outside of the lines of necessary military occupation and the scenes of insurrection, exert all its powers to maintain the supremacy of the civil over military law.

Resolved, That in view of these principles we denounce the recent assumption of a military commander to seize and try a citizen of Ohio, Clement L. Vallandigham, 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 orders of that General.

Resolved, That this assumption of power by a military tribunal, if successfully asserted, not only abrogates the right of the people to assemble and discuss the affairs of government, the liberty of speech and of the press, the right of trial by jury, the law of evidence, and the privilege of habeas corpus, but it strikes a fatal blow at the supremacy of law, and the authority of the State and federal constitutions.

Resolved, That the Constitution of the United States--the supreme law of the land — has defined the crime of treason against the United States to consist “only in levying war against them, or adhering to their enemies, giving them aid and comfort;” and has provided that “no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.” And it further provides that “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 and naval forces, or in the militia, when in actual service in time of war or public danger;” and further, that “in all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial by an impartial jury of the State and district wherein the crime was committed.”

Resolved, That these safeguards of the rights of the citizen against the pretensions of arbitrary power were intended more especially for his protection in times of civil commotion. They were secured substantially to the English people, after years of protracted civil war, and were adopted into our Constitution at the close of the revolution. They have stood the test of seventy-six years of trial, under our republican system, under circumstances which show that, while they constitute the foundation of all free government, they are the elements of the enduring stability of the republic.

Resolved, That, in adopting the language of Daniel Webster, we declare, “it is the ancient and undoubted prerogative of this people to canvass public measures and the merits of public men.” It is a “home-bred right,” a fireside privilege. It has been enjoyed in every house, cottage, and cabin in the nation. It is as undoubted as the right of breathing the air or walking on the earth. Belonging to private life as a right, it belongs to public life as a duty, and it is the last duty which those whose representatives we are shall find us to abandon. Aiming at all times to be courteous and temperate in its use, except when the right itself is questioned, we shall place ourselves on the extreme boundary of our own right, and bid defiance to any arm that would move us from our ground. “This high constitutional privilege we shall defend and exercise in all places — in time of peace, in time of war, and at all times. Living, we shall assert it; and should we leave no other inheritance to our children, by the blessing of God we will leave them the inheritance of free principles and the example of a manly, independent, and constitutional defence of them.”

Resolved, That in the election of Governor Seymour, the people of this State, by an emphatic majority, declared their condemnation of the system of arbitrary arrests and their determination to stand by the Constitution. That the revival of this lawless system can have but one result — to divide and distract the North, and destroy its confidence in the purposes of the Administration. That we deprecate it as an element of confusion at home, of weakness to our armies in the field, and as calculated to lower the estimate of American character and magnify the apparent peril of our cause abroad. And that, regarding the blow struck at a citizen of Ohio as aimed at the rights of every citizen of the North, we denounce it as against the spirit of our laws and Constitution, and most earnestly call upon the President of the United States to reverse the action of the military tribunal which has passed a “cruel and unusual punishment” upon the party arrested, prohibited in terms by the Constitution, and to restore him to the liberty of which he has been deprived.

Resolved, That the President, Vice-Presidents, and Secretary of this meeting be requested to transmit a copy of these resolutions to his Excellency the President of the United States, with the assurance of this meeting of their hearty and earnest desire to support the Government in every constitutional and lawful measure to suppress the existing rebellion.

President Lincoln's reply.

Executive mansion, Washington, June 12, 1863.
Hon. Erastus Corning and others:
gentlemen: Your letter of May nineteenth, inclosing the resolutions of a public meeting held at Albany, New-York, on the sixteenth of the same month, was received several days ago.

The resolutions, as I understand them, are resolvable into two propositions--first, the expression of a purpose to sustain the cause of the Union, to secure peace through victory, and to support the Administration in every constitutional and lawful measure to suppress the rebellion; and secondly, a declaration of censure upon the Administration for supposed unconstitutional action, such as the making of military arrests. And from the two propositions a third is deduced, which is, that the gentlemen composing the meeting are resolved on doing their part to maintain our common Government and country, despite [300] the folly or wickedness, as they may conceive, of any Administration. This position is eminently patriotic, and as such, I thank the meeting and congratulate the nation for it. My own purpose is the same; so that the meeting and myself have a common object and can have no difference, except in the choice of means or measures for effecting that object.

And here I ought to close this paper, and would close it, if there were no apprehension that more injurious consequences than any merely personal to myself might follow the censures systematically cast upon me for doing what, in my view of duty, I could not forbear. The resolutions promise to support me in every constitutional and lawful measure to suppress the rebellion; and I have not knowingly employed, nor shall knowingly employ, and other. But the meeting, by their resolutions, assert and argue that certain military arrests, and proceedings following them, for which I am ultimately responsible, are unconstitutional. I think they are not. The resolutions quote from the Constitution the definition of treason, and also the limiting safeguards and guarantees therein provided for the citizen on trial for treason, and on his being held to answer for capital or otherwise infamous crimes, and, in criminal prosecutions, his right to a speedy and public trial by an impartial jury. They proceed to resolve “that these safeguards of the rights of the citizens against the pretensions of arbitrary power were intended more especially for his protection in times of civil commotion.” And, apparently to demonstrate the proposition, the resolutions proceed: “They were secured substantially to the English people after years of protracted civil war, and were adopted into our Constitution at the close of the Revolution.” Would not the demonstration have been better, if it could have been truly said that these safeguards had been adopted and applied during the civil wars and during our Revolution, instead of after the one and at the close of the other? I, too, am devotedly for them after civil war, and before civil war, and at all times, “except when, in cases of rebellion or invasion, the public safety may require” their suspension. The resolutions proceed to tell us that these safeguards “have stood the test of seventy-six years of trial, under our republican system, under circumstances which show that while they constitute the foundation of all free government, they are the elements of the enduring stability of the republic.” No one denies that they have so stood the test up to the beginning of the present rebellion, if we except a certain occurrence at New-Orleans; nor does any one question that they will stand the same test much longer after the rebellion closes. But these provisions of the Constitution have no application to the 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 any capital or otherwise infamous crimes; 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. Let us consider the real case with which we are dealing, and apply to it the parts of the Constitution plainly made for such cases.

Prior to my installation here it had been inculcated that any State had a lawful right to secede from the national Union, and that it would be expedient to exercise the right whenever the devotees of the doctrine should fail to elect a President to their own liking. I was elected contrary to their liking; and accordingly, so far as it was legally possible, they had taken seven States out of the Union, had seized many of the United States forts, and had fired upon the United States flag, all before I was inaugurated, and, of course, before I had done any official act whatever. The rebellion thus begun soon ran into the present civil war; and, in certain respects, it began on very unequal terms between the parties. The insurgents had been preparing for it more than thirty years, while the Government had taken no steps to resist them. The former had carefully considered all the means which could be turned to their account. It undoubtedly was a well-pondered reliance with them that in their own unrestricted efforts to destroy Union, Constitution, and law, all together, the Government would, in great degree, be restrained by the same Constitution and law from arresting their progress. Their sympathizers pervaded all departments of the Government and nearly all communities of the people. From this material, under cover of “liberty of speech,” “liberty of the press,” and habeas corpus, they hoped to keep on foot amongst us a most efficient corps of spies, informers, suppliers, and aiders and abettors of their cause in a thousand ways. They knew that in times such as they were inaugurating, by the Constitution itself, the habeas corpus might be suspended; but they also knew they had friends who would make a question as to who was to suspend it; meanwhile their spies and others might remain at large to help on their cause. Or if, as has happened, the executive should suspend the writ, without ruinous waste of time, instances of arresting innocent persons might occur, as are always likely to occur in such cases; and then a clamor could be raised in regard to this, which might be, at least, of some service to the insurgent cause. It needed no very keen perception to discover this part of the enemy's programme so soon as by open hostilities their machinery was fairly put in motion. Yet, thoroughly imbued with a reverence for the guaranteed rights of individuals, I was slow to adopt the strong measures which by degrees I have been forced to regard as being within the exceptions of the Constitution and as indispensable to the public safety. Nothing is better known to history than that courts of justice are utterly incompetent to such cases. Civil courts are organized chiefly for trials of individuals, or, at [301] most, a few individuals acting in concert; and this in quiet times, and on charges of crimes well defined in the law. Even in times of peace, bands of horse-thieves and robbers frequently grow too numerous and powerful for the ordinary courts of justice. But what comparison in numbers have such bands ever borne to the insurgent sympathizers even in many of the loyal States? Again, a jury too frequently has at least one member more ready to hang the panel than to hang the traitor. And yet, again, he who dissuades one man from volunteering, or induces one soldier to desert, weakens the Union cause as as much as he who kills a Union soldier in battle. Yet this dissuasion or inducement may be so conducted as to be no defined crime of which any civil court would take cognizance.

Ours is a case of rebellion — so called by the resolutions before me — in fact, a clear, flagrant, and gigantic case of rebellion; and the provision of the Constitution that “the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it,” is the provision which specially applies to our present case. This provision plainly attests the understanding of those who made the Constitution, that ordinary courts of justice are inadequate to “cases of rebellion” --attests their purpose that, in such cases, men may be held in custody whom the courts, acting on ordinary rules, would discharge. Habeas corpus does not discharge men who are proved to be guilty of defined crime; and its suspension is allowed by the Constitution on purpose that men may be arrested and held who cannot be proved to be guilty of defined crime, “when, in cases of rebellion or invasion, the public safety may require it.” This is precisely our present case — a case of rebellion, wherein the public safety does require the suspension. Indeed, arrests by process of courts, and arrests in cases of rebellion, do not proceed together altogether upon the same basis. The former is directed at the small percentage of ordinary and continuous perpetration of crime, while the later is directed at sudden and extensive uprisings against the government, which, at most, will succeed or fail in no great length of time. In the latter case, arrests are made, not so much for what has been done as for what probably would be done. The latter is more for the preventive and less for the vindictive than the former. In such cases the purposes of men are much more easily understood than in cases of ordinary crime. The man who stands by and says nothing when the peril of his government is discussed cannot be misunderstood. If not hindered, he is sure to help the enemy; much more, if he talks ambiguously — talks for his country with “buts,” and “ifs,” and “ands.” Of how little value the constitutional provisions I have quoted will be rendered, if arrests shall never be made until defined crimes shall have been committed, may be illustrated by a few notable examples. General John C. Breckinridge, General Robert E. Lee, General Joseph E. Johnston, General John B. Magruder, General William B. Preston, General Simon B. Buckner, and Commodore Franklin Buchanan, now occupying the very highest places in the rebel war service, were all within the power of the government since the rebellion began, and were nearly as well known to be traitors then as now. Unquestionably, if we had seized and held them the insurgent cause would be much weaker. But no one of them had then committed any crime defined in the law. Every one of them, if arrested, would have been discharged on habeas corpus were the writ allowed to operate. In view of these and similar cases, I think the time not unlikely to come when I shall be blamed for having made too few arrests rather than too many.

By the third resolution, the meeting indicate their opinion that military arrests may be constitutional in localities where rebellion actually exists, but that such arrests are unconstitutional in localities where rebellion or insurrection does not actually exist. They insist that such arrests shall not be made “outside of the lines of necessary military occupation and the scenes of insurrection.” Inasmuch, however, as the Constitution itself makes no such distinction, I am unable to believe that there is any such constitutional distinction. I concede that the class of arrests complained of can be constitutional only when, in cases of rebellion or invasion, the public safety may require them; and I insist that in such cases they are constitutional wherever the public safety does require them, as well in places to which they may prevent the rebellion extending as in those where it may be already prevailing; as well where they may restrain mischievous interference with the raising and supplying of armies to suppress the rebellion, as where the rebellion may actually be; as well where they may restrain the enticing men out of the army, as where they would prevent mutiny in the army; equally constitutional at all places where they will conduce to the public safety, as against the dangers of rebellion or invasion. Take the particular case mentioned by the meeting. 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 orders of the general.” Now, if there be no mistake about this — if this assertion is the truth and the whole truth — if there was no other reason for the arrest, then I concede that the arrest was wrong. But the arrest, as 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 interests 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 [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 [303] was much discussed. I am not prepared to say whom the journals would show to have voted for the measure.

It may be remarked, first, that we had the same Constitution then as now; secondly, that we then had a case of invasion, and now we have <*> case of rebellion; and thirdly, that the permanent right of the people to public discussion, the liberty of speech and of the press, the trial by jury, the law of evidence, and the habeas corpus, suffered no detriment whatever by that conduct of General Jackson, or its subsequent approval by the American Congress.

And yet, let me say that, in my own discretion, I do not know whether I would have ordered the arrest of Mr. Vallandigham. While I cannot shift the responsibility from myself, I hold that, as a general rule, the commander in. the field is the better judge of the necessity in any particular case. Of course, I must practise a general directory and revisory power in the matter.

One of the resolutions expresses the opinion of the meeting that arbitrary arrests will have the effect to divide and distract those who should be united in suppressing the rebellion, and I am specifically called on to discharge Mr. Vallandigham. I regard this as, at least, a fair appeal to me on the expediency of exercising a constitutional power which I think exists. In response to such appeal I have to say, 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. I further say that, as the war progresses, it appears to me, opinion and action, which were in great confusion at first, take shape and fall into more regular channels, so that the necessity for strong dealing with them gradually decreases. I have every reason to desire that it should cease altogether, and far from the least is my regard for the opinions and wishes of those who, like the meeting at Albany, declare their purpose to sustain the Government in every constitutional and lawful measure to suppress the rebellion. Still I must continue to so much as may seem to be required by the public safety.

Reply of the Albany Democracy.


At a public meeting held at the Capitol, in the city of Albany, on the sixteenth day of May, 1863, to consider the arbitrary arrest of Mr. Vallandigham, certain resolutions were adopted, copies of which were, by the direction of the meeting, transmitted by its officers to President Lincoln, who, in a communication dated the twelfth of June, 1863, addressed to the gentlemen referred to, which has appeared very generally in the public prints, discussed the resolutions and controverted certain positions which they maintained in regard to personal rights and constitutional obligations.

On the receipt of this communication the Hon. Erastus Corning, chairman of the meeting referred to, addressed the President, informing him in substance that the special duty assigned to the officers of the meeting had been fulfilled by sending the resolutions to his Excellency, but adding that in view of the importance of the principles involved, and the public interest which the matter had assumed, he had deemed it proper to submit the President's letter to the committee who reported the resolutions, for such action as in their judgment it might demand.

The committee having considered the subject, and viewing the questions at issue as of the gravest importance, replied to the President's communication, which reply is now laid before the public. At the request of the committee it was sent to the President by the officers of the meeting, in a letter under their signatures, of which the following is a copy:

To His Excellency the President of the United States:
sir: The undersigned, officers of the public meeting held in this city on the sixteenth day of May last, to whom your communication of the twelfth of this month, commenting on the resolutions adopted at that meeting, was addressed, have the honor to send to your Excellency a reply to that communication by the committee who reported the resolutions. The great importance to the people of this country of the questions discussed must be our apology, if any be needed, for saying that we fully concur in this reply, and believe it to be in entire harmony with the views and sentiments of the meeting referred to.

We are, with great respect, very truly yours,

To His Excellency Abraham Lincoln, President of the United States:
sir: Your answer, which has appeared in the [304] public prints, to the resolutions adopted at a recent meeting in the city of Albany affirming the personal rights and liberties of the citizens of this country, has been referred to the undersigned, the committee who prepared and reported those resolutions. The subject will now receive from us some further attention, which your answer seems to justify, if not to invite. We hope not to appear wanting in the respect due to your high position if we reply with a freedom and earnestness suggested by the infinite gravity and importance of the questions upon which you have thought proper to take issue at the bar of public opinion.

You seem to be aware that the Constitution of the United States, which you have sworn to protect and defend, contains the following guarantees, to which we again ask your attention: First. Congress shall make no law abridging the freedom of speech or of the press. Second. The right of the people to be secure in their persons against unreasonable seizures shall not be violated, and no warrant shall issue but upon probable cause supported by oath. Third. No person, except soldiers and mariners in the service of the Government, shall be held to answer for a capital or infamous crime, unless on presentment or indictment of a grand jury, nor shall any person be deprived of life, liberty, or property without due process of law. Fourth. In all criminal prosecutions the accused shall enjoy the right of a speedy and public trial by an impartial jury of the State or district in which the crime shall have been committed, and to be confronted with the witnesses against him.

You are also no doubt aware that on the adoption of the Constitution these invaluable provisions were proposed by the jealous caution of the States, and were inserted as amendments for a perpetual assurance of liberty against the encroachments of power. From your earliest reading of history, you also know that the great principles of liberty and law which underlie these provisions were derived to us from the British Constitution. In that country they were secured by magna charta more than six hundred years ago, and they have been confirmed by many and repeated statutes of the realm. A single palpable violation of them in England would not only arouse the public indignation, but would endanger the throne itself. For a persistent disregard of them, Charles the First was dethroned and beheaded by his rebellious subjects.

The fact has already passed into history that the sacred rights and immunities which were designed to be protected by these constitutional guarantees have not been preserved to the people during your administration. In violation of the first of them, the freedom of the press has been denied. In repeated instances newspapers have been suppressed in the loyal States because they criticized, as constitutionally they might, those fatal errors of policy which have characterized the conduct of public affairs since your advent to power. In violation of the second of them, hundreds, and we believe thousands, of men have been seized and immured in prisons and bastiles, not only without warrant upon probable cause, but without any warrant, and for no other cause than a constitutional exercise of the freedom of speech. In violation of all these guarantees, a distinguished citizen of a peaceful and loyal State has been torn from his home at midnight by a band of soldiers, acting under the order of one of your generals, tried before a military commission, without judge or jury, convicted and sentenced without even the suggestion of any offence known to the Constitution or laws of this country. For all these acts you avow yourself ultimately responsible. In the special case of Mr. Vallandigham, the injustice commenced by your subordinate was consummated by a sentence of exile from his home pronounced by you. That, great wrong, more than any other which preceded it, asserts the principles of a supreme despotism.

These repeated and continued invasions of constitutional liberty and private right have occasioned profound anxiety in the public mind. The apprehension and alarm which they are calculated to produce have been greatly enhanced by your attempt to justify them. Because in that attempt you assume to yourself a rightful authority possessed by no constitutional monarch on earth. We accept the declaration that you prefer to exercise this authority with a moderation not hitherto exhibited. But, believing as we do, that your forbearance is not the tenure by which liberty is enjoyed in this country, we propose to challenge the grounds on which your claims of supreme power is based. While yielding to you as a constitutional magistrate the deference to which you are entitled, we cannot accord to you the despotic power you claim, however indulgent and gracious you may promise to be in wielding it.

We have carefully considered the grounds on which your pretensions to more than legal authority are claimed to rest; and if we do not misinterpret the misty and clouded forms of expression in which those pretensions are set forth, your meaning is, that while the rights of the citizen are protected by the Constitution in time of peace, they are suspended or lost in time of war, when invasion or rebellion exists. You do not, like many others in whose minds reason and the love of regulated liberty seem to be overthrown by the excitements of the hour, attempt to base this conclusion upon a supposed military necessity existing outside of and transcending the Constitution, a military necessity behind which the Constitution itself disappears in a total eclipse. We do not find this gigantic and monstrous heresy put forth in your plea for absolute power, but we do find another equally subversive of liberty and law, and quite as certainly tending to the establishment of despotism. You claim to have found, not outside but within the Constitution, a principle or germ of arbitrary power, which in time of war expands at once into an absolute sovereignty, wielded by one man, so that liberty perishes, or is dependent on his will, his discretion, [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 [306] their condition. You have not yet exercised this power, and therefore, according to your own constitutional thesis, your conclusion falls to the ground. It is one of the provisions of the Constitution, and of the very highest value, that no ex post facto law shall be passed, the meaning of which is, that no act which is not against the law when committed can be made criminal by subsequent legislation. But your claim is, that when the writ of habeas corpus is suspended, you may lawfully imprison and punish for the crimes of silence, of speech, and opinion. But as these are not offences against the known and established law of the land, the constitutional principle to which we now refer plainly requires that you should, before taking cognizance of such offences, make known the rule of action, in order that the people may be advised in due season, so as not to become liable to its penalties. Let us turn your attention to the most glaring and indefensible of all the assaults upon constitutional liberty, which have marked the history of your administration. No one has ever pretended that the writ of habeas corpus was suspended in the State of Ohio, where the arrest of a citizen at midnight, already referred to, was made, and he placed before a court-martial for trial and sentence, upon charges and specifications which admitted his innocence according to the existing laws of this country. Upon your own doctrine, then, can you hesitate to redress that monstrous wrong?

But, sir, we cannot acquiesce in your dogmas that arrests and imprisonment, without warrant or criminal accusation, in their nature lawless and arbitrary, opposed to the very letter of constitutional guarantees, can become in any sense rightful, by reason of a suspension of the writ of habeas corpus. We deny that the suspension of a single and peculiar remedy for such wrongs brings into existence new and unknown classes of offences, or new causes for depriving men of their liberty. It is one of the most material purposes of that writ to enlarge upon bail persons who, upon probable cause, are duly and illegally charged with some known crime, and a suspension of the writ was never asked for in England or in this country, except to prevent such enlargement when the supposed offence was against the safety of the government. In the year 1807, at the time of Burr's alleged conspiracy, a bill was passed in the Senate of the United States, suspending the writ of habeas corpus for a limited time in all cases where persons were charged on oath with treason, or other high crime or misdemeanor, endangering the peace or safety of the government. But your doctrine undisguisedly is, that a suspension of this writ justifies arrests without warrant, without oath, and even without suspicion of treason or other crime. Your doctrine denies the freedom of speech and of the press. It invades the sacred domain of opinion and discussion. It denounces the “ifs” and the “buts” of the English language, and even the refuge of silence is insecure.

We repeat, a suspense on the writ of habeas corpus merely dispenses with a single and peculiar remedy against an unlawful imprisonment; but if that remedy had never existed, the right to liberty would be the same, and every invasion of that right would be condemned not only by the Constitution, but by principles of far greater antiquity than the writ itself. Our common law is not at all indebted to this writ for its action of false imprisonment, and the action would remain to the citizen, if the writ were abolished for ever. Again, every man, when his life or liberty is threatened without the warrant of law, may lawfully resist, and if necessary in self-defence, may take the life of the aggressor. Moreover, the people of this country may demand the impeachment of the President himself for the exercise of arbitrary power. And when all these remedies shall prove inadequate for the protection of free institutions, there remains, in the last resort, the supreme right of revolution. You once announced this right with a latitude of expression which may well be considered dangerous in the present crisis of our national history. You said: “Any people, anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. Nor is this right confined to cases where the people of an existing government may choose to exercise it. Any portion of such people that can may revolutionize and make their own of so much of their territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority intermingled with 01 near about them, who may oppose their movements.” (Vol. 19, Congressional Globe, p. 94.) Such were your opinions, and you had a constitutional right to declare them. If a citizen now should utter sentiments far less dangerous in their tendency, your nearest military commander would consign him to a dungeon or to the tender mercies of a court-martial, and you would approve the proceeding.

In our deliberate judgment the Constitution is not open to the new interpretation suggested by your communication now before us. We think every part of that instrument is harmonious and consistent. The possible suspension of the writ of habeas corpus is consistent with freedom of speech and of the press. The suspension of that remedial process may prevent the enlargement of the accused traitor or conspirator until he shall be legally tried and convicted or acquitted; but in this we find no justification for arrest and imprisonment without warrant, without cause, without the accusation or suspicion of crime. It seems to us, moreover, too plain for argument that the sacred right of trial by jury, and in courts where the law of the land is the rule of decision, is a right which is never dormant, never suspended, in peaceful and loyal communities and States. Will you, Mr. President, maintain, that because the writ of habeas corpus may be in suspense, you can substitute soldiers and bayonets for the peaceful operation of the laws, military [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.” [308]

More than this, you overlook the fact that the then administration (in the language of a wellknown author) “mildly but decidedly rebuked the proceedings of General Jackson,” and that the President viewed the subject with “surprise and solicitude.” Unlike President Madison, you in a case much more unwarranted, approve the proceedings of your subordinate officer, and in addition justify your course by a carefully considered argument in its support.

It is true that after some thirty years, Congress, in consideration of the devoted and patriotic services of General Jackson, refunded the amount of the fine he had paid! But the long delay in doing this, proved how reluctant the American people were to do any thing which could be considered as in any way approving the disregard shown to the majesty of the law, even by one who so eminently enjoyed their confidence and regard.

One subject more, and we shall conclude. You express your regret that our meeting spoke “as Democrats ;” and you say that “in this time of national peril you would have preferred to meet us upon a level, one step higher than any party platform.” You thus compel us to allude to matters which we should have preferred to pass by. But we cannot omit to notice your criticism, as it casts, at least, an implied reproach upon our motives and our proceedings. We beg to remind you that when the hour of our country's peril had come, when it was evident that a most gigantic effort was to be made to subvert our institutions and to overthrow the government, when it was vitally important that party feelings should be laid aside, and that all should be called upon to unite most cordially and vigorously to maintain the Union; at the time you were sworn into office as President of the United States, when you should have urged your fellowcitizens in the most emphatic manner to overlook all past differences and to rally in defence of their country and its institutions, when you should have enjoined respect for the laws and the Constitution, so clearly disregarded by the South, you chose, for the first time, under like circumstances in the history of our country, to set up a party platform, called the “Chicago platform,” as your creed; to advance it beyond the Constitution and to speak disparagingly of that great conservative tribunal of our country, so highly respected by all thinking men who have inquired into our institutions — the supreme Court of the United States.

Your administration has been true to the principles you then laid down. Notwithstanding the fact that several hundred thousand Democrats in the loyal States cheerfully responded to the call of their country, filled the ranks of its armies, and by “their strong hands and willing arms” aided to maintain your Excellency and the officers of government in the possession of our national capital; notwithstanding the fact that the great body of the Democrats of the country have in the most patriotic spirit given their best efforts, their treasure, their brothers and their sons, to sustain the government and to put down the rebellion, you, choosing to overlook all this, have made your appointments to civil office, from your cabinet officers and foreign ministers down to the persons of lowest official grade among the tens of thousands engaged in collecting the revenues of the country, exclusively from your political associates.

Under such circumstances, virtually proscribed by your administration, and while most of the leading journals which supported it approved the sentence pronounced against Mr. Vallandigham, it was our true course — our honest course to meet as “Democrats,” that neither your Excellency nor the country might mistake our antecedents or our position.

In closing this communication, we desire to reaffirm our determination, and we doubt not that of every one who attended the meeting which adopted the resolutions we have discussed, expressed in one of those resolutions, to devote “all our energies to sustain the cause of the Union.”

Permit us, then, in this spirit, to ask your Excellency to reexamine the grave subjects we have considered, to the end that on your retirement from the high position you occupy, you may leave behind you no doctrines and no further precedents of despotic power to prevent you and your posterity from enjoying that constitutional liberty which is the inheritance of us all, and to the end, also, that history may speak of your administration with indulgence, if it cannot with approval.

We are, sir, with great respect, yours very truly,

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