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ought not to be admitted to social or political equality with the white
race," seem very foolish as well as very narrow and bigoted now, but
then appeals to race prejudice were very effective weapons for weak-
ening the administration and discrediting the war for the Union.
In Ohio it was declared that " it would be unjust to our gallant sol-
diers to compel them to free the negroes of the South, and thereby fill
Ohio with a degraded population to compete with these same soldiers
upon their return to the peaceful avocations of life." Indiana was
red-hot for " negro exclusion," and the Democracy of Illinois made
the distinct declaration that a war for the abolition of slavery could
not have their support. These were the issues that won in the elec-
tions of 1862. The shame that followed the election of Abraham
Lincoln in 1860 was repeated in 1862 as the answer to Lincoln's Moni-
tory Proclamation.

In spite of a fatuity into which they were led by fatuous politicians,
the people of the Free States were sound at the core, and the people
of the border States were even more devoted to the Union than in
the dangerous months of secession. But in the border Slave States,
as in the belt of Free States that fringed the skirts of slavery, the
politicians hostile to the administration were intractable. Lee had
entered Maryland with the avowed purpose of helping the downtrod-
den people of the State to free themselves from the yoke of the
tyrant, but he found himself in a land where he was regarded as an
enemy, while McClellan's soldiers were welcomed as friends. Bragg
had gone into Kentucky with the intention of rousing a fresh revolt,
and as he retreated, discouraged and beaten, he was fired upon by the
people he had come to champion. But the politicians of the border


States were as hostile to compensated emancipation as the Demo-
cratic politicians of the Free States were hostile to " freeing the nig-
gers " under any circumstances or for any reason. A bill to give the
loyal slaveholders of Missouri $15,000,000 for the emancipation of
their slaves was so strenuously resisted by the Democratic Repre-
sentatives in Congress, aided by the rest of the Democrats from all the
States, early in 1863, that the measure was beaten. Had it succeeded
similar relief would have been extended to Delaware, Maryland, West
Virginia, and Kentucky. Mr. Crittenden, the venerable champion
of conciliation, could not be persuaded to accept even compensated
conciliation when it involved the destruction of slavery. He scouted
the acceptance of United States bonds in payment for slave property
as an absurdity. " You Southern men," the President said one day
to the eminent Kentucky Unionist, " will soon reach the point where
bonds will be a more valuable possession than bondsmen. Nothing
is more uncertain now than two-legged property." And so it proved.
The influences that controlled the Representatives from the border
States in their opposition to compensated emancipation, and the
Democratic leaders in the North and West, were their confident belief
that the war was a failure, and their expectation of the intervention
of the Great Powers. In consequence of these expectations and be-
liefs some of the Democratic conspirators were looking forward to
the time when they could compel an armistice, and call a Peace Con-
vention with or without the consent of a humiliated administration.
Lord Lyons, the British Minister, was made the depository of the con-
fidences of some of the Democratic leaders of New York immediately
after the election of Governor Seymour. " The subject uppermost in
their minds while they were speaking to me," Lyons wrote, " was
naturally that of mediation between the North and the South."
While believing that it must come they were " afraid of its coming
too soon "; it would be " essential to the success of any proposal from
abroad that it should be deferred until the control of the Executive
Government should be in the hands of the Conservative party "; they
told him that " the object of the military operations should be to place
the North in a position to demand an armistice," and that the armis-
tice should be " followed by a Convention in which such changes of
the Constitution should be proposed as would give the South ample
security on the subject of its slave property"; and they wanted, if
they could, to bring about the armistice " without the aid of foreign
governments," but " if it appeared to be the only means of putting
an end to hostilities " they " would be disposed to accept an offer of
mediation." It was while this conspiracy, which was the result of the
great Democratic triumph in the elections of 1862, was in its incipient


stages that the Emancipation Proclamation was issued. The Procla-
mation, in itself, was not abolition. It was purely a military measure,
but it would free the slaves wherever the armies of the Union pene-
trated while the war lasted. When the war was over complete
emancipation would still remain to be perpetuated by a Constitu-
tional amendment, unless the amendment came sooner. Its imme-
diate effect was to delay intervention, and with the delay the Demo-
cratic hopes of mediation vanished. Gettysburg and Vicksburg ren-
dered the dream of an armistice, such as the Democratic conspirators
desired, a thing impossible of attainment, and with the triumphs of
the national arms came renewed triumphs for the Republican party
that made the great Democratic strength in the 38th Congress the
sad expression of the despair of the nation.

Two Acts of the 37th Congress were especially obnoxious to the
Peace Democracy the Act authorizing the suspension of the writ of
Habeas Corpus and the Conscription Act. There had been many mili-
tary arrests of civilians during the early part of the war, and some
of these military prisoners had been held without regard to writs
issued by State or Federal judges. These arrests were wildly de-
nounced as outrages, and as most of the " State prisoners " were
prominent Democrats, noted for their zeal, activity, and earnestness
in misrepresenting and discouraging the war, their detention was the
occasion of a great outcry. These victims of the " tyrant " included
Charles J. Ingersoll, an eminent lawyer and former member of Con-
gress from Philadelphia; James W. Wall, an avowed enemy of the
war, of New Jersey; George W. Jones, previously a Senator in Con-
gress from Iowa, and Mr. Buchanan's Minister to Bogota; Jacob J.
Noah, a Union soldier, whose " political opinions were adverse to
those of the dominant party"; William II. Winder, a Marylander,
nominally of Philadelphia, who w r as very active in proclaiming that
" the Union was founded on fraternal love and fellowship," that " it
could never be cemented by blood or upheld by the bayonet," and in
deprecating the civil war and deploring its consequences; and Dennis
A. Mahoney, the editor of the Dubuque Herald, Iowa, who was one of
the prisoners confined in the " Old Capitol " prison at Washington.
These were representative opponents of the war in the North and
W T est, in whose behalf it was claimed that " the licentiousness of the
tongue or pen is a minor evil compared with the licentiousness of
arbitrary power." Free speech was to be accorded to every man who
denounced the war, proclaimed it a failure, misrepresented its pur-
poses, and discouraged enlistments, but any interference with these
disloyal acts was tyranny, and the tyrant, Lincoln, was denounced in
political speeches and political conventions in all parts of the coun-


try. The effect of this crusade, at first disastrous to the Kepublicans
in the elections of 1862, was felt with even greater force in the draft
riots of 1863.

One of the ablest and most vindictive opponents of the adminis-
tration was Clement L. Vallandigham, a member of the 37th Con-
gress from Ohio. When secession came Vallandigham opposed
coercion, and was constant in his attempts " to restore the Union
through peace." For " publicly expressed sympathy for those in arms
against the Government of the United States, and declared disloyal
sentiments and opinions, with the object and purpose of weakening
the power of the Government in its efforts to suppress an unlawful
rebellion " in a speech at Mount Vernon, Ohio, Vallandigham was ar-
rested by order of General Burnside in May, 1863, tried by a Military

Commission, and sentenced to confinement
in Fort Warren, Boston Harbor. President
Lincoln modified this sentence, and directed
that he should be sent through the military
lines to the enemy. The language imputed
to Vallandigham, S. S. Cox, in his " Three
Decades of Federal Legislation." claims as
his own. Cox says that by some mistake the
provost-marshal, or some other reporter,
gave his words as the words of Vallandig-
ham, and that he swore to this state of fact
before the court-martial. No attention was
paid to the genial " Sunset," who was not
dangerous, while Vallandigham was very

c. L. VALLANDIGHAM. dangerous indeed. Had he not been rigor-
ously dealt with he would have had the

Peace Democracy of Ohio in arms against the Enrollment Act be-
fore midsummer. As he was convicted and sent South, as Cox says,
" by some whim of tyranny," violent resistance to the draft was trans-
ferred to New York City, where the Draft Riots of 1863 became one of
the most startling episodes of the turning period in the War for the

The Conscription Act was rendered necessary by the discourage-
ment of enlistments that resulted from Democratic opposition to the
war. The Act was passed on the 16th of April, 1863. Its passage was
received with great bitterness by the Peace Democrats everywhere.
It was not the kind of armistice they were looking for. It was the
Conscription Law that was so hotly discussed by Vallandigham and
Cox at Mount Vernon, and denounced " in defense of the rights of the
people and of constitutional liberty." In New York the action of the


Government in causing the arrest of Vallandighani caused great ex-
citement and indignation, and at a meeting of Democrats at Albany,
over which Erastus Corning presided, it was denounced as " the as-
sumption of a military commander," for reasons mildly described as
" words addressed to a public meeting, in criticism of the course of
the administration and in condemnation of the military orders of
that General." The whole series of resolutions adopted by the Albany
meeting w T as transmitted to the President, and Mr. Lincoln answered
them, cogently and frankly, in words that have an interest as great
to-day as w r hen they were uttered.

" The resolutions promise to support me," he said, " in every con-
stitutional and lawful measure to suppress the Rebellion; and I have
not knowingly employed, nor shall knowingly employ, any 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 guaranties 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 pro-
ceed to resolve ' 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.' And, ap-
parently 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 Revolu-
tion, 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 elements of the enduring stability of the Republic.' No one denies
that they have stood the test up to the beginning of the present Rebel-
lion, 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 com-


plained of were not made for treason that is, not for the treason
defined in the Constitution, and upon conviction of which the punish-
ment 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 prosecu-
tions.' The arrests were made on totally different grounds, and the
proceedings which followed accorded with the grounds of the arrest.
Let us consider the real case with which we are dealing, and apply to
it parts of the Constitution plainly made for such cases.

u p r io r f O ni y 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 pre-
paring 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 the Union, Constitution, and law, all together, the
Government would, in great degree, be restrained by the same Con-
stitution and law from arresting their progress. Their sympathizers
pervaded all departments of the Government and nearly all com-
munities of the people. From this material, under cover of ' liberty
of speech,' ' liberty of the press,' and ' habeas corpus, 1 * 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 Con-
stitution 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
program, 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 or-
ganized chiefly for trials of individuals, or, at most, a few individuals
acting in concert; and this in quiet times, and on charges of crimes
well denned in the law. Even in times of peace, bands of horse thieves
and robbers frequently grow too numerous and powerful for 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 from volunteering, or induces one soldier to desert,
weakens the Union cause 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 cog-

" 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 can not 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 altogether
upon the same basis. The former is directed at the small percentage
of ordinary and continuous perpetration of crime; while the latter 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 pre-


ventive 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, can not 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 i ifs ' and ' auds.'
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 few notable examples.
General John C. Breckinridge, General Robert E. Lee, General Joseph
E. Johnston, General John B. Magruder, General William Preston,
General Simon B. Buckner, and Commodore Franklin Buchanan,
now occupying the very highest places in the rebel war service, were
nil within the power of the Government since the Rebellion began,
and w r ere nearly as well known to be traitors then as now. Unques-
lionably, if we had seized 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 T arrests rather than too many.

" By the third resolution, the meeting indicate their opinion that
military arrests may be constitutional in localities where rebellion
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, how-
ever, 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 in-
terference 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 mutinj^ in the army; equally constitutional at all places where
they will conduce to the public safety, as against the dangers of re-
bellion or invasion. Take the peculiar 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 w r ords ad-


dressed to a public meeting, in criticism of the course of the adminis-
tration, 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 this gave the military constitutional jurisdiction to lay
hands upon him. If Mr. Vallandigham was not damaging the mili-
tary power of the country, then his arrest was made on a mistake of
fact, which I would be glad to correct on reasonably satisfactory

" I understand the meeting, whose resolutions I am considering, to
be in favor of suppressing the Rebellion by military force by armies.
Long experience has shown that armies can not be maintained unless
desertions 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 con-
stitutional, 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 the absence of rebellion or in-
vasion, 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 Gov-

Online LibraryGeorge Oberkirsh SeilhamerHistory of the Republican party (Volume 1) → online text (page 14 of 61)