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 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. 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 natioual peril I would have preferred to meet you on 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 I understand the meeting, whose resolutions ones where, from the force of habit, the prejuI am considering, to be in favor of suppressing dices of the past, and selfish hopes of the future, the rebellion by military force-by armies. we are sure to expend much of our ingenuity Long experience has shown that armies cannot and strength in finding fault with, and aming be maintained unless desertion shall be pun-blows at, each other. But, since you have deished by the severe penalty of death. The case nied me this, I will yet be thankful, for the requires, and the law and the Constitution country's sake, that not all Democrats have sanction, this punishment. Must I shoot a done so. He on whose discretionary judgment simple-minded soldier boy who deserts, while Mr. Vallandigham was arrested and tried is a I must not touch a hair of a wily agitator who Democrat, having no old party affinity with me; induces him to desert? This is none the less and the judge who rejected the constitutional injurious when effected by getting a father, or view expressed in these resolutions, by refusing brother, or friend, into a public meeting, and to discharge Mr. Vallandigham on habeas corpus, there working upon his feelings till he is per- is a Democrat of better days than these, having suaded to write the soldier boy that he is fight-received his judicial mantle at the hands of ing in a bad cause, for a wicked Administration President Jackson. And still more, of all those of a contemptible Government, too weak to ar- Democrats who are nobly exposing their lives rest and punish him if he shall desert. I think and shedding their blood on the battle-field, I that, in such a case, to silence the agitator and have learned that many approve the course save the boy is not only constitutional, but taken with Mr. Vallandigham, while I have not withal a great mercy. heard of a single one condemning it. I cannot If I be wrong on this question of constitu- assert that there are none such. And the name tional power, my error lies in believing that of President Jackson recalls an instance of percertain proceedings are constitutional when, in tinent history. After the battle of New Orleans, cases of rebellion or invasion, the public safety and while the fact that the treaty of peace had requires them, which would not be constitu- been concluded was well known in the city, but tional when, in absence of rebellion or invasion, before official knowledge of it had arrived, Genthe public safety does not require them: in eral Jackson still maintained martial or military other words, that the Constitution is not, in its law. Now, that it could be said the war was application, in all respects the same, in cases over, the clamor against martial law, which had of rebellion or invasion involving the public existed from the first, grew more furious. safety, as it is in times of profound peace and Among other things a Mr. Louaillier published public security. The Constitution itself makes a denunciatory newspaper article. General the distinction; and I can no more be per- Jackson arrested him. A lawyer by the name suaded that the Government can constitution-of Morel procured the U. S. Judge Hall to order ally take no strong measures in time of rebel- a writ of habeas corpus to relieve Mr. Louaillier. lion, because it can be shown that the same General Jackson arrested both the lawyer and could not be lawfully taken in time of peace, the judge. A Mr. Hollander ventured to say of than I can be persuaded that a particular drug some part of the matter that "it was a dirty is not good medicine for a sick man because it trick." General Jackson arrested him. When can be shown to not be good food for a well one. the officer undertook to serve the writ of habeas Nor am I able to appreciate the danger appre-corpus, General Jackson took it from him, and hended by the meeting, that the American peo- sent him away with a copy. Holding the judge ple will, by means of military arrests during in custody a few days, the general sent him the rebellion, lose the right of public discus- beyond the limits of his encampment, and set sion, the liberty of speech and the press, the him at liberty, with an order to remain till the law of evidence, trial by jury, and habeas corpus, ratification of peace should be regularly anthroughout the indefinite peaceful future, which nounced, or until the British should have left I trust lies before them, any more than I am the southern coast. A day or two more elapsed, able to believe that a man could contract so the ratification of the treaty of peace was regustrong an appetite for emetics during tem-larly announced, and the judge and others were porary illness as to persist in feeding upon fully liberated. A few days more and the judge called General Jackson into court and fined him | communicate with you on the subject of the $1,000 for having arrested him and the others arrest and banishment of Clement L. Vallandignamed. The General paid the fine, and there ham, most respectfully submit the following as the matter rested for nearly thirty years, when the resolutions of that Convention bearing upon Congress refunded principal and interest. The the subject of this communication, and ask of late Senator Douglas, then in the House of your Excellency their earnest consideration. Representatives, took a leading part in the de- And they deem it proper to state that the Conbates, in which the constitutional question was vention was one in which all parts of the State much discussed. I am not prepared to say were represented, one of the most respectable whom the journals would show to have voted as to numbers and character, and one the most for the measure. earnest and sincere in support of the Constitution and the Union, ever held in that State : It may be remarked: First, that we had the same Constitution then as now; secondly, that Resolved, That the will of the people is the foundation of we then had a case of invasion, and now we all free government; that, to give effect to this free will, have a case of rebellion; and, thirdly, that the free thought, free speech, and a free press are absolutely indispensable. Without free discussion there is no cerpermanent right of the people to public dis-tainty of sound judgment: without sound judgment there can be no wise government. cussion, 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 Gen. Jackson, or its subsequent approval by the American Congress. 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 the Constitution, to impair their liberties, or to be detriand vote against whatever policy seems to them to violate mental to their welfare. 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 3. That these and all other rights guarantied to them by I cannot shift the responsibility from myself, I their Constitutions are their rights in time of war as well as in time of peace, and of far more value and necessity in hold that, as a general rule, the commander in war than in peace, for in peace liberty, security, and propthe field is the better judge of the necessity in erty are seldom endangered; in war they are ever in peril. 4. That we now say to all whom it may concern, not by any particular case. Of course, I must prac-way of threat, but calmly and firmly, that we will not surtice a general directory and revisory power in render these rights, nor submit to their forcible violation. the matter. We will obey the laws ourselves, and all others must obey them. 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. 11. That Ohio will adhere to the Constitution and the Union as the best-it may be the last-hope of popular free- actual banishment of Clement L. Vallandigham, a citizen 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 sup-ation, and particularly describing the place to be searched press the rebellion. Still, I must continue to do so much as may seem to be required by the public safety. A. LINCOLN. CORRESPONDENCE BETWEEN OHIO DEMOCRATS AND PRESIDENT LINCOLN. The Letter to the President. WASHINGTON, 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 11th instant, to 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 probable cause, supported by oath or affirm 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 ascer tained 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. dent. 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 cach Congressional district of the State, to be selected by the presiding officer of this Convention, is hereby appointed to present this application to the PresiThe 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. Vallandighamthey 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 conflict with each other. The arrest, unusual trial, and banishment of Mr. Vallandigham have created wide-spread 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." 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 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 of the course of the Administration, and in condemnation of reason than words addressed to a public meeting in criticism the military order of the general. Now, if there be no mistake about this, if there was no other reason for the arrest, I understand, was made for a very different reason. Mr. then I concede that the arrest was wrong. But the arrest, 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 encour age 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 pros pects 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 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." The undersigned assure your Excellency, from our own personal knowledge of the feel- In answer to this permit us to say, first, that ings of the people of Ohio, that the public neither the charge nor the specifications in supsafety will be far more endangered by continu- port of the charge on which Mr. Vallandigham ing Mr. Vallandigham in exile than by releas-was tried impute to him the act of either laboring him. It may be true that persons differing ing to prevent the raising of troops or to en courage desertions from the army. Secondly, 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 desertion 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 17, 1862, and March 3, 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 when, 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 punishment;" 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 anywise 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 guaranty 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 writ of habeas corpus before trial, what more can be required for the purposes of the Government? The idea that all 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 are subject to be annulled whenever you may say that you consider the public safety requires it, in time of invasion or insurrection? 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 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," &c. 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. Letter from President Lincoln. WASHINGTON, June 29, 1863. Did the Constitution intend to throw the Messrs. M. Birchard, David M. Houk, George Bliss, T. W. 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 describing 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 the 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 co-operate 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, &c., M. BIRCHARD, Chairman, 19th Dist. T. W. BARTLEY, 8th Dist. Bartley, W. J. Gordon, John O'Niell, C. A. White, W. E. Finck, Alexander Long, J. W. White, George H. Pendle ton, George S. Converse, Warren P. Noble, James R. Morris, W. A Hutchins, Abner L. Backus, J. F. McKinney, F. C. LeBlond, Louis Schaefer: 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 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." that I have not expressed the opinion you sup- 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." this limitation upon the power of Congress to You say: "Expunge from the Constitution 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 case of rebellion or invasion, involving the public safety. If the liberty could be indulged in 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 |
