Henry J. (Henry Jarvis) Raymond.

Lincoln, his life and time : being the life and public services of Abraham Lincoln, sixteenth president of the United States, together with his state papers, including his speeches, addresses, messages and proclamations and closing scenes connected with his life and death (Volume 1) online

. (page 40 of 42)
Online LibraryHenry J. (Henry Jarvis) RaymondLincoln, his life and time : being the life and public services of Abraham Lincoln, sixteenth president of the United States, together with his state papers, including his speeches, addresses, messages and proclamations and closing scenes connected with his life and death (Volume 1) → online text (page 40 of 42)
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I was inaugurated, and, of course, before I had done any official act what
ever. The rebellion thus began soon ran into the present civil war ;
and, in certain respects, it began on very unequal terms between the par
ties. 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
altogether, the Government would, in great degree, be restrained by the
same Constitution and law from arresting their progress. Their sympa
thizers 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," they hoped to
keep on foot among 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 wore 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 : mean
while, 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 opening hostilities, their ma
chinery was put fairly in motion. Yet, thoroughly imbued with a rev
erence for the guaranteed rights ^i "ndividuals, I was slow to adopt the
itrong 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 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 fre
quently grow too numerous and powerful for the ordinary courts of jus
tice. 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 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 resolution 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 pub
lic 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 rales, would
discharge. Habeas corpus does not discharge men who are proved to be
guilty of denned crime ; and its suspension is allowed by the Constitu
tion on purpose that men maybe 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 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 preventive and less for the vindictive than the former. In such cases
the purposes of men are much more easily understood than in case* of
ordinary crime. The man who stands by and says nothing, when th?


peril of his Government is discussed, cannot be misunderstood. If not
hindered, he is sure to help the enemy; much more, if he talks ambigu
ouslytalks for his country with "buts," and "ifs," and "ands." Of
how little value the constitutional provisions I have quoted will be "en-
dered, if arrests shall never be made until defined crimes shall have boed
committed, may be illustrated by a few notable examples. General John
C. Breckinridge, General Robert E. Eee. General Joseph E. Johnston,
General John B. Magruder, General William B. Preston, General Simc
B. Buckner, and Commodore Franklin Buchanan, now occupying the ve:
highest places in the rebel war service, were all within the power of th
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 01
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
aiakes no such distinction, I am unable to believe that there is any such
jonstitutional distinction. I concede that the class of arrests complained
)f 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 maybe already prevailing; as well where they may restrain mis
chievous interference with the raising and supplying of armies to sup
press 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 dan
gers 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 Admin
istration, 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 con
cede that the ariest was wrong. But the arrest, as I understand, was
B>H(le for a very different reason. Mr. Valaiidigham avows hi.s m.stility to


the war on the part of the Union ; and his arrest was made hecause he
was laboring, with some effect, to prevent the raising of troops; to en
courage desertions from the army ; and to leave the rebellion without
an adequate military force to suppress it. He was not arrested because
ne was damaging the political prospects of the Administration, or the per-
sonal 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. Vallandighain
was not damaging the military power of the country, then this arrest
was made on mistake of fact, which I would be glad to correct on rea
sonable satisfactory evidence.

I understand the meeting, whose resolutions 1 am considering, to be in
favor of suppressing the rebellion by military force by armies. Long
experience has shown that armies cannot 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 injuri
ous 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

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 invasion, the pub
lic 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 time 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 not to be good food for a well one. Nor am I able
to appreciate the danger apprehended by the meeting that the Amer
ican people will, by means of military arrests during the rebellion, lose
the right of public discussion, the liberty of speech and the press, the
law of evidence, trial by jury, and habeas corpus, throughout the indefi
nite peaceful future, which I trust lies before them, any more than I am
ble to believe that a man coutf contract so strong an appetite for emetioi


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 "Demo
crats." Nor can I, with full respect for their known intelligence, and
the fairly presumed deliberation with which they prepared their reso
lutions, be permitted to suppose that this occurred by accident, or in
any way other than that they preferred to designate themselves "Dem
ocrats" rather than "American citizens." In this time of national
peril, 1 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, wo 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 ex
pend 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 done 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. Vallandig
ham, while I have not heard of a single one condemning it. I cannot
assert that there are none such. And the name of Jackson recalls an
incident 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
till maintained martial or military law. Now that it could be said th
war was over, the clamor against martial law, which had existed from
the first, grew more furious. Among other things, a Mr. Louiallier pub
lished a denunciatory newspaper article. General Jackson arrested him.
A lawyer by the name of Morrel procured the United States Judge Hall
to issue a writ of habeas corpus to relive Mr. J: jiallier. General Jack
son 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 a treaty of peace was regu



larly announced, and the judge and others were fully liberated. A few-
days more, and the judge called General Jackson into court and fined him
$1,000 for having arrested him and the others named. The General paid
the fine, and there the matter rested for nearly thirty years, when Con
gress refunded principal and interest. The late Senator Douglas, then in
the House of Eepresentatives, took a leading part in the debates, in
which the constitutional question was much discussed. I am not pre
pared 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 aa
now ; secondly, that we then had a case of invasion, and now we have a
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 what-
sver 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 partic
ular 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 arbi
trary 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 do so much as may seem to be re
quired by the public safety. A. LINCOLN.

Similar meetings were held in New York, Philadelphia,
and other cities and towns of the North, and, on the llth
of June, a State Convention of the Democratic party waa
held at Columbus, Ohio, for the nomination of State offi-


cers. Mr. Yallandigham was, at that convention, made
the Democratic candidate for Governor, receiving, on the
first ballot, four hundred and forty-eight votes out of four
hundred and sixty- one, the whole number cast. Senator
Pugh was nominated for Lieu tenant- Governor, and reso
lutions were adopted protesting against President Lin
coln s emancipation proclamation; condemning martial
law in loyal* States, where war does not exist ; denoun
cing the suspension of the writ of habeas corpus ; protest
ing very strongly against the banishment of Vallandig
ham, and calling on the President to restore him to his
rights ; declaring that they would hail with delight the
desire of the seceded States to return to their allegiance,
and that they would co-operate with the citizens of those
States in measures for the restoration of peace.

A committee of the convention visited Washington,
and on the 26th of June presented to the President the
resolutions adopted by the convention, and urged the
immediate recall and restoration of Mr. Yallandigham,
their candidate for Governor. To this, President Lincoln
made the following reply :

WASHINGTON, June 29, 1868.

GENTLEMEN : The resolutions of the Ohio Democratic State Conven
tion, which you present me, together with your introductory and closing
remarks, being in position and argument mainly the same as the resolu
tions 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 de
fcire 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 Constitu
tion is different in time of insurrection or invasion from what it is in time
of peace and public security."

A recurrence to the paper will show you that I have not expressed
the opinion you suppose. I expressed the opinion that the Constitution
is different in its application in cases of rebellion or invasion, involving
the public safety, from wnat it is in times of profound peace and public
security ; and this opinion I adhere to, simply because by the Constitu
tion itself things may be do ntt Q the one case which n?ay not be done in
the other.


I dislike to waste a word on a merely personal point, but I must re-
Bpectfully assure you that you will find yourselves at fault should yon
ever seok for evidence to prove your assumption that I "opposed in
discussions before the people the policy of the Mexican war."

You say: "Expunge from the Constitution this limitation upon the
power of Congress to suspend the writ of habeas corpus, and yet the
other guarantees of personal liberty would remain unchanged." Doubt
less, if this clause of the Constitution, improperly called, as I think, a
/imitation upon the power of Congress, were expunged, the other guar
antees would remain the same ; but the question is, not how those guar
antees 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 expun
ging that clause, letter and spirit, Ireally think the constitutional argu
ment 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. Val-
landigham, in the very case in question, under the advice of able law
yers, saw not where else to go but to the habeas corpus. But by the
Constitution the benefit of the writ of habeas corpv* itself may be sus
pended, when, in case of rebellion or invasion, the public safety may
require it.

You ask, in substance, whether I really claim that I may override all
the guaranteed rights of individuals, on the plea of conserving the public
safety when I may choose to say the public safety requires it. This
question, divested of the phraseology calculated to represent mo as
struggling for an arbitrary personal prerogative, is either simply a
question who shall decide, or an affirmation that nobody shall decide,
what the public safety does require in cases of rebellion or invasion.
The Constitution contemplates the question as likely to occur for de-
bion, but it does not expressly declare who is to decide it. By necea-
ary implication, when rebellion or invasion comes, the decision is to be
made from time to time ; and I think the man whom, for the time, the
people have, under the Constitution, made the commander-in-chief of
their army and navy, is the man who holds the power and bears the
responsibility of making it. If he uses the power justly, the same
people will probably justify him ; if he abuses it, he is in their hands to
be dealt with by all the modes they have reserved to themselves in the

The earnestness with which you insist that persons can only, in timei
of rebellion, be lawfully dealt with in accordance with the rules for
criminal trials ac^ punishment* times of peace, induces me to add *


word to what T said on that point in the Albany response. You claim
that men may, if they choose, embarrass those whose duty it is to com
bat a giant rebellion, and then be dealt with only in turn as if there
were no rebellion. The Constitution itself rejects this view. The mili
tary arrests and detentions which have been made, including those of
Air. Vallandigham, which are not different in principle from, the other,
aave been for prevention, and not for punishment as injunctions to stay
injury, as proceedings to keep the peace and hence, like proceedings in
iueh cases and for like reasons, they have not been accompanied with
ndictrnents, or trial by juries, nor in a single case by any punishment
whatever beyond what is purely incidental to the prevention. The
original sentence of imprisonment in Mr. Vallandigham s case was to
irevent injury to the military service only, and the modification of it
tfas made as a less disagreeable mode to him of securing the same pre

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

You claim, as I understand, that according to my own position in the
Albany response, Mr. Vallandigham should be released; and this be

Online LibraryHenry J. (Henry Jarvis) RaymondLincoln, his life and time : being the life and public services of Abraham Lincoln, sixteenth president of the United States, together with his state papers, including his speeches, addresses, messages and proclamations and closing scenes connected with his life and death (Volume 1) → online text (page 40 of 42)