Horace Greeley.

The American conflict: a history of the great rebellion in the United States of America, 1860-'64 online

. (page 69 of 113)
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The nomination for Governor by the
Republicans of WiUiam A. Bucking-
ham, the incumbent, who had, both
officially and personally, been a
strenuous and prominent champion
of ' coercion,' was fairly countered
by the presentation, as his competi-
tor, of Col. Thomas H. Seymour, an
ex-Governor of decided personal pop-
ularity, but an early, consistent, out-
spoken contemner of the War — or



rather, of the National side of it. His
nomination was made by a very large
Convention, wid with a degree of
imanimity and genuine enthusiasm
rarely manifested ; while the canvass
that ensued thereon was one of the
most animated and enei^etic ever
witnessed even in that closely bal-
anced State : its result being tiie tri-
umph of the Republicans by a much
reduced but still decisive majority.**
It is quite probable that a candidate
less decidedly and conspicuously hos-
tile to the War than CoL Seymour
might, while polling fewer votes,
have come much nearer an election ;
since Seymour's nomination was a
challenge to the War party which
incited it to the most vehement ex-
ertions.

No other general Election was
held in any of the loyal States dur-
ing the earlier half of 1863 ; yet the
result in these three — though main-
taining the Republican ascendency
in each — ^left no room for reasonable
doubt that, apart from the soldierfl
in the field, a majority of the voters
in the loyal States were still — as had
been indicated by the results of the
elections during the later months of
1862 "— ^opposed to a further prosecu-
tion of the War, and certainly opposed
to its prosecution on the anti-Slavery
basis established by the action of
Congress and by the President's two
Proclamations of Sept. 22, 1862, and
Jan. 1, 1863. If called to vote di-
rectly on the question of making
peace on the basis of a recognition
of the Southern Confederacy, some
of those who voted the Opposition



*Mar6hlO.

** Eastman, Dem., 82,833; GQmore, Bep.,
99,036 ; Harriman, Union or War Dem., 4,372:
Saatman lacks of a minority, 674. " April 1.



"For Goveraor: Smith, Eep., 10,828; Co«-
zens, Dem^ 7,537. "April 6.

"Buckingham, 41,032; SeTmour, 38,396.
** See page 264.



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PASSAGB OF BITAL OONSOBIPTION ACTS.



487



ticiketB might — as was indicated by
Lord Lyons — ^have shrunk from an
open committal to such a peace ; but
it is none the less certain that their
attitude and action tended directly
to insure a result which their bolder
or more candid compatriots frankly
proclaimed inevitable. Many who
adhered to the Democratic organiza-
tion asserted, what some, at least,
must have believed — ^that the Con-
federates, in spite of their persistent,
peremptory denials and disclaimers,
might yet, by conciliatory overtures
and proper concessions, be reconciled
to a restoration of the Union ; but
very few who still adhered to that
body, out of the army, averred that,
if all proffers and guaranties should
be rejected, they would fayor a prose-
cution of the War for their subju-
gation.

The Rebel Congress having long
since passed" a conscription act,
whereby all the White males in the
Confederacy between the ages of 18
and 35 were placed at the disposal
of their Executive, while all those
already in the service, though they
had enlisted and been accepted for
specific terms of one or two years,
were held to serve through the War,
our Congress was constrained to fol-
low afar off in the footsteps of the
enemy; since our ranks, since our
heavy losses in the bloody strug-
gles of. 1862, were filled by volunteers
too slowly for the exigencies of the
service. The act providing " for the
enrollment of the National forces"
was among the last passed " by the
XXXVIlth Congress prior to its dis-
solution. It provided for the enroll-
ment, by Federal provost-marshals
and enrolling officers, of all able-



bodied malecitizens(not Whites only),
including aliens who had declared
their intention to become natural-
ized, between the ages of 18 and 45—
those between 20 and 35 to consti-
tute the first class; all others the
second class — ^from which the Presir
dent was authorized, from and after
July 1, to make drafts at his discre-
tion of persons to serve in the Na-
tional armies for not more than three
years; any one drafted and not
reporting for service to be considered
and treated as a deserter. A com-
mutation of $300 was to be received
in lieu -of such service : and there
were exemptions provided of certain
heads of Executive Departments ;
Federal judges ; Governors of States ;
the only son of a widow, or of an
aged and infirm father, dependent on
that son's labor for support ; the father
of dependent motherless children
under 12 years of age, or the only
adult brother of such children, being
orphans ; or the residue of a family
which has already two members in
the service, &c., &c.

The passage and execution of this
act inevitably intensified and made
active the spirit of opposition to the
War. Those who detested every
form of ' coercion' save the coercion
of the Republic by the Rebels, with
those who especially detested the
National eifort under its present
aspects as ' a war not for the Union,
but for the Negro,' were aroused by
it to a more determined and active
opposition. The bill passed the
House by Teas 115, Nays 49 — the
division being, so nearly as might
be, a party one — ^while in the Senate,
a motion by Mr. Bayard that it be
indefinitely postponed was supported



* April 16, 1862.



» Maroh 3^ 1863.



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488



THE AICEBIOAK OONFLIOT.



State militia into ^National forces,' and
claims to use and goyern them as such."

If, then, the Gtevemors of the
States, or of most of them, should
see fit to respond to the President's
requisitions as Gov. Caleb Strong, of
Massachusetts, did to those of Pre-
sident Madison in 1813-14, and as
Gbvs. Letcher," Ellis, Harris, Ma-
goffin, Jackson, and Burton, did to
President Dncoln's requisitions in
1861, the Federal authority may be
successfully defied, and what Mr.
Jefferson Davis terms "the dissolu-
tion of a league'' secured. It were
absurd to contend that judges who
so held were opposed, either in prin-
ciple or in sympathies, to the cause,
or at least to the ethics, of Secession.



by 11 Teas (all Democrats) to 35
Nays: consisting of every Repub-
lican present, with Messrs. McDou-
gall, of California, Harding and Nes-
mith, of Oregon. The bill then passed
without a call of the Yeas and Nays.

The President proceeding to con-
stitute an enrolling board for each
Oongrees district in the loyal States,
and the Board to enroll those who
were held to military service under
its provisions, the repugnance to
being drafted into the service b^an
to threaten organized and formidable
resistance. That the enrolling act
was unconstitutional and void, was
very generally held and proclaimed
by the Opposition, and was in due
time formally adjudged by Justice
John H. McOunn, of the New York
Supreme Court, as also by the De-
mocratic justices** forming a majority
of the Supreme Court of Pennsyl-
vania. That Court held broadly that
the Federal Government has no
power to recruit its armies otherwise
than by voluntary enlistments; that
the Militia can be called out only by
State authority, under State officers,
and in accordance with State laws.
Says Judge Woodward :

" The great vice of the conscript law is,
that it is founded on an assamption that
Congress may take away, not the State
rights of the citizen, hut the security and
foundation of his State rights. And how
long is civil liberty expected to last, after
the securities of civil liberty are destroyed ?
The Constitution of the United States com-
mitted the liberties of the citizen in part to
the Federal Government, but expressly re-
served to the States, and the people of the
States, all it did not delegate. It gave the
General Government a standing army, but
left to the States their militia. Its purposes,
in all this balancing of powers, were wise

system of government when it converts the



The Constitution of the United
States (Art. L, § 9) prescribes that

" The privflege of the writ of haheoi ear-
pu$ shall not be suspended, unless when, in
cases of rebellion or invasion, the public
safety may require it"

The implication that it may U
suspended in the cases specified is so
irresistible that its justice has never
been seriously questioned. But by
whom may it be suspended? And
with what effect? That Congress
should authorize the suspensioti, was
generally held by the early and es-
teemed commentators: but suppose
Congress not in session — ^nay, sup-
pose no Congress to be in existence—
when a great and imminent public
peril shall require such suspension—
what then? To this question, no
conclusive answer had been given,
when, at the very outbreak of the
Eebellion, the President authorized ^



o{ habeas corpus^



^ Chief Justice Lowrie and Justioes Wood-
irard and Thompson.



"»See Vol I, pp. 459-60. The Democratio
Goyernora were a unit * April 2t, 1861-



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HABEAS 0OBPU8— ICR. VALLANDIGHAM'S CASE.



489



" i^ at any p<unt on or in the vicinity of the
military line which is now or which shall be
used between the .city of Philadelphia and
the city of Washington, yon find resistance
which renders it necessary."

A similar discretion was soon
afterward** accorded to our com-
mander on the Florida coast; the
anthority conferred on Qen. Scott
was soon extended;** it was next
made** general so far as it might
aflfect persons arrested by military
anthority as gnilty of disloyal prac-
tices; and — Congress haying at
length by express act anthorized**
snch suspension — ^the President pro-
claimed *' a general suspension of the
privilege of habeas corpus — ^to " con-
tinue throughout the duration of
such Rebellion." But, months ere
this, a serious collision between mili-
tary authority and Peace Democ-
racy had been inaugurated, and had
created much excitement, in Ohio.

Mr. C. L. Vallandigham, having
been defeated in his canvass for re-
election by Gen. Eobert C. Schenck,
at the Ohio State Election in 1862,
ceased to be a Member at the close
of the XXXVnth Congress.** Re-
turning to Ohio, where he had al-
ready been suggested as the Demo-
cratic candidate for Governor in the
canvass of that year, he speedily en-
gaged in a popular canvass of the
War and the Federal Administration,
in a spirit of sweeping hostility to
both. Q^n. Bumside, whb had just
been transferred to and placed in
command of the military department
including Ohio, put forth *^ a general
order, wherein he proclaimed that
henceforth

" All persons fonnd within onr lines who
commit acts for the benefit of the enemies
of our country will be tried as spies or
traitors, and, if convicted, will suffer death.



♦ ♦ * The habit of declaring sympathies
for the enemy will not be allowed in this
department. Persons committing such of-
fenses will be at once arrested, with a view
to being tried, as above stated, or sent
beyond onr lines into the lines of their
friends. It must be distinctly understood
that treason, expressed or implied, will not
be tolerated in this department.*'

Whether this was specially aimed
at Vallandigham or not, it was easily
foreseen that he would be one of the
first to expose himself to its penalties ;
and but three weeks elapsed from the
date of the order before he was ar-
rested *• at night while in bed in his
ovni house, on a chai^ of having, in
a recent speech at Mount Vernon,

"publicly expressed sympathy for those
in arms against the Government of the
United States, and declared disloyal senti-
ments and opinions, with the object and
purpose of weakening the power of the €k>-
vemment in its efforts to suppress an un-
lawful Rebellion.^'

Being arraigned before a Court-
Martial over which Brig.-Q^n. R B.
Potter presided, he was found guilty
on some of the specifications em-
braced in the charge, and sentenced
to close confinement till the end of
the War. Gen. Bumside designated
Fort Warren, in Boston harbor, as
the place of such confinement ; but
the President modified the sentence
into a direction that Mr. V. should
be sent through our military lines
into the Southern Confederacy, and,
in case of his return therefrom, he
should be confined as prescribed in
the sentence of the court. Judge
Leavitt, of the U. 8. District Court
for Ohio, was applied to for a writ of
habeas corpus to take the prisoner
out of the hands of the military, but
refused it.

This sentence was duly executed
by Gen. Eosecrans, so far as to send
the convict into the Confederacy;



May 2. -July 2. -Sept 24> '62. ••May 3. » Sept 15. »March3, »63. •^Aprils. "May 4.



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400



THB AKBBIOAK CONFLICT.



but he remained there only a few
weeks, taking a blockade-nmner from
Wibnington to Nassau, and thence
making his way in due time to Can-
ada, where he remained: having
meantime been nominated for Gov-
ernor by an overwhehning vote in a
large Democratic State Convention,
and with an understanding that, in
case of his anticipated election, he
should be escorted from the State
line to its capital by a volunteer pro-
cession of Democrats strong enough
to resist successftdly any attempt to
rearrest him.

The action in this case of Gen.
Bumside and his Court Martial crea-
ted a profound sensation throughout
the country; and a great meeting
of Democrats was held" at Albany,
wherein very strong resolves con-
demning such action were unani-
mously passed — among them the fol-
lowing :

** Besohsdy That we denounce the recent
assumption of a military commander to seize
and try a citizen of Ohio, Clement L. Yal-
landigham, 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.

" Heaohed, That tliis assumption of power
by a military tribunal, if successfully as-
serted, 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 haheas earptiSy
but it strikes a fatal blow at the supremacy
of law and the authority of the State and
Federal Constitutions.

** £esoked, 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 levy-
ing war against them, or adhering to their
enemies, giving them aid and comfort,' and
has provided that * no person shall be con-
victed of treason, unless on the testimony
of two witnesses to the same overt act, or
on confession in open court.' And it farther
provides that 'no person shall be held to



answer for a capital or otherwise in&mons
crime, unless on a presentment or indict-
ment of a grand jury, except in cases arisiug
in the land and naval forces, or in the mili-
tia, when in actual service in time of war or
public danger;' and further, tiiat *in all
criminal prosecutions, the accused shall en-
joy the right of a speedy and public trial by
an impartial jury of the State and district
wherem the crime was committed.'

^^Be$oU>ed, That, in the election of Gov.
Seymour, the people of this State, by an em-
phatic minority, declared iheir condemna-
tion of the system of arbitrary arrests and
their determination to stand by the Consti-
tution. That the revival of this lawless sys-
tem can have but one result : to divide and
distract the North, and destroy its confi-
dence in the purposes of the Administration.
That we deprecate it as an element of con-
fusion 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 citi-
zen 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 lib-
erty of which he has been deprived."

Hon. Erastus Coming, President of
the meeting, transmitted, by its order,
these resolves to President Lincohi ;
who, after taking ample time to con-
sider them, responded frankly, cour-
teously, elaborately, cogently; and, as
the subject discussed is one of grave,
abiding interest, the material portion
of his reply wiU here be given. He
says:

"The resolutions promise to support ine
in every constitutional and lawful measure
to suppress the Rebellion ; and I have not
knowingly employed, nor shall knowmgly
employ, any other. But the meeting, by
their resolutions, assert and argue that cer-
tain military arrests, and proceedings fol-
lowing them, for which I am ultimately re-
sponsible, 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



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PRESIDENT LINCOLN ON ARBITRABT ARRESTS.



491



treftson, and on his being held to answer for
capital or otherwise infamoas crimes, and,
in oriminal proseontions, his right to a speedy
and public trial bj an impartial jnry. They
proceed to resolve, Hhat these safeguards
oi the rights of the citizen against ^e pre-
tensions of arbitrary power were intended
more especially for his protection in times of
dvil commotion.* And, apparently to de-
monstrate t^e proposition, the resolutions
proceed : ' They were secured substantially
to the English people c^fter years of pro-
tracted 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 ap-
plied during the civil wars, and during our
Revolution, instead of after the one and at
the close of the other? I, too, am devotedly
fbr them after civil war, and h^ore civil
war, and at all times, * except when, in cases
of rebellion or inva^on, the public safety
may require' their suspension. The resolu-
tions 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 govern-
ment, they are elements of the enduring
stability of the Republic' No one denies that
they have so stood the test up to the begin-
ning 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 Oonstitution
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 conviction of which the punishment is
death — ^nor yet were they made to hold per-
sons to answer for any capital or otherwise
infamous crimes ; nor were the proceedings
following, in any constitutional or legaJ sense,

* criminal prosecutions.' The arrests were
made on totally different grounds, and the
proceedings following accorded with the
grounds of the arrest. Let us consider the
real case with which we are dealing, and
apply to it the parts of the Oonstitution
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 lik-
ing ; 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 com*8e, before I had done any official act
whatever. The Rebellion thus began soon
ran into the present civil war; and, in cer-
tain 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 coi>
sidered 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 Gov-
ernment would, in great degree, be restrain-
ed by the same Constitution and law from
arresting their progress. Their sympathi»>
ers pervaded all departments of the Goveri^
ment and nearly all communities of the peo-
ple. 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 wer«
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 ^ 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 dis-
cover 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 most, a few indi-
viduals acting in concert ; and this in auiet
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 powerfal 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 jiuy too frequently has
at least one member more ready to hang the
panel tium to hang the traitor. And yet^



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492



THB AMERICAN COKFLIOT.



again, he who dissuades one man from vol-
nnteering, or induces one soldier to desert,
weakens the Union cause as much as he who
kills a Union soldier in battle. Yet this dis-
suasion or inducement maybe so conducted
as to be no defined crime of which any civil
court would take cognizance.

**0nr8 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 Gonstitution, that
* the privilege of the writ of habeas eorptu
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 cus-
tody 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 inva-
sion, the public safety may require it'

'^This is precisely our present case — a
case of rebellion, wherein the public safety



Online LibraryHorace GreeleyThe American conflict: a history of the great rebellion in the United States of America, 1860-'64 → online text (page 69 of 113)