The Writings of Abraham Lincoln Vol. 1-7

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

Prior to my installation here it had been inculcated that any State
had a lawful right to secede from the national Union, and that it
would be expedient to exercise the right whenever the devotees of the
doctrine should fail to elect a president to their own liking. I was
elected contrary to their liking; and accordingly, so far as it was
legally possible, they had taken seven States out of the Union, had
seized many of the United States forts, and had fired upon the United
States flag, all before I was inaugurated, and, of course, before I
had done any official act whatever. The rebellion thus begun soon
ran into the present civil war; and, in certain respects, it began on
very unequal terms between the parties. The insurgents had been
preparing for it more than thirty years, while the government had
taken no steps to resist them. The former had carefully considered
all the means which could be turned to their account. It undoubtedly
was a well-pondered reliance with them that in their own unrestricted
effort to destroy Union, Constitution and law, all together, the
government would, in great degree, be restrained by the same
Constitution and law from arresting their progress. Their
sympathizers invaded all departments of the government and nearly all
communities of the people. From this material, under cover of
“liberty of speech,” “liberty of the press,” and “habeas corpus,”
they hoped to keep on foot amongst us a most efficient corps of
spies, informers, suppliers, and aiders and abettors of their cause
in a thousand ways. They knew that in times such as they were
inaugurating, by the Constitution itself the “habeas corpus” might be
suspended; but they also knew they had friends who would make a
question as to who was to suspend it; meanwhile their spies and
others might remain at large to help on their cause. Or if, as has
happened, the Executive should suspend the writ without ruinous waste
of time, instances of arresting innocent persons might occur, as are
always likely to occur in such cases; and then a clamor could be
raised in regard to this, which might be at least of some service to
the insurgent cause. It needed no very keen perception to discover
this part of the enemies 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 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 frequently grow too
numerous and powerful for the ordinary courts of justice. But what
comparison, in numbers have such bands ever borne to the insurgent
sympathizers even in many of the loyal States? Again, a jury too
frequently has at least one member more ready to hang the panel than
to hang the traitor. And yet again, he who dissuades one man from
volunteering, or induces one soldier to desert, weakens the Union
cause as much as he who kills a Union soldier in battle. Yet this
dissuasion or inducement may be so conducted as to be no defined
crime of which any civil court would take cognizance.

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

By the third resolution the meeting indicate their opinion that
military arrests may be constitutional in localities where rebellion
actually exists, but that such arrests are unconstitutional in
localities where rebellion or insurrection does not actually exist.
They insist that such arrests shall not be made “outside of the lines
of necessary military occupation and the scenes of insurrection.”
Inasmuch, however, as the Constitution itself makes no such
distinction, I am unable to believe that there is any such
constitutional distinction. I concede that the class of arrests
complained of can be constitutional only when, in cases of rebellion
or invasion, the public safety may require them; and I insist that in
such cases–they are constitutional wherever the public safety does
require them, as well in places to which they may prevent the
rebellion extending, as in those where it may be already prevailing;
as well where they may restrain mischievous interference with the
raising and supplying of armies to suppress the rebellion as where
the rebellion may actually be; as well where they may restrain the
enticing men out of the army as where they would prevent mutiny in
the army; equally constitutional at all places where they will
conduce to the public safety as against the dangers of rebellion or
invasion. Take the particular case mentioned by the meeting. It is
asserted in substance that Mr. Vallandigham was, by a military
commander, seized and tried “for no other reason than words addressed
to a public meeting in criticism of the course of the administration,
and in condemnation of the military orders of the general.” Now, if
there be no mistake about this, if this assertion is the truth, and
the whole truth, if there were 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 thus gave the military constitutional
jurisdiction to lay hands upon him. If Mr. Vallandigham was not
damaging the military power of the country, then his arrest was made
on mistake of fact, which I would be glad to correct on reasonably
satisfactory evidence.

I understand the meeting whose resolutions I am considering to be in
favor of suppressing the rebellion by military force–by armies.
Long experience has shown that armies cannot be maintained unless
desertion shall be punished by the severe penalty of death. The case
requires, and the law and the Constitution sanction, this punishment.
Must I shoot a simple-minded soldier boy who deserts while I must
not touch a hair of a wily agitator who induced him to desert. This
is none the less injurious when effected by getting a father, or
brother, or friend into a public meeting, and there working upon his
feelings till he is persuaded to write the soldier boy that he is
fighting in a bad cause, for a wicked administration of a
contemptible government, too weak to arrest and punish him if he
shall desert. I think that, in such a case, to silence the agitator
and save the boy is not only constitutional, but withal a great

If I be wrong on this question of constitutional power, my error lies
in believing that certain proceedings are constitutional when, in
cases of rebellion or invasion, the public safety requires them,
which would not be constitutional when, in absence of rebellion or
invasion, the public safety does not require them: in other words,
that the Constitution is not in its application in all respects the
same in cases of rebellion or invasion involving the public safety as
it is in times of profound peace and public security. The
Constitution itself makes the distinction, and I can no more be
persuaded that the government can constitutionally take no strong
measures in time of rebellion, because it can be shown that the same
could not be lawfully taken in times of peace, than I can be
persuaded that a particular drug is not good medicine for a sick man
because it can be shown to not be good food for a well one. Nor am I
able to appreciate the danger apprehended by the meeting, that the
American people will by means of military arrests during the
rebellion lose the right of public discussion, the liberty of speech
and the press, the law of evidence, trial by jury, and habeas corpus
throughout the indefinite peaceful future which I trust lies before
them, any more than I am able to believe that a man could contract so
strong an appetite for emetics during temporary illness as to persist
in feeding upon them during the remainder of his healthful life.

In giving the resolutions that earnest consideration which you
request of me, I cannot overlook the fact that the meeting speak as
“Democrats.” Nor can I, with full respect for their known
intelligence, and the fairly presumed deliberation with which they
prepared their resolutions, be permitted to suppose that this
occurred by accident, or in any way other than that they preferred to
designate themselves “Democrats” rather than “American citizens.” In
this time of national peril I would have preferred to meet you upon a
level one step higher than any party platform, because I am sure that
from such more elevated position we could do better battle for the
country we all love than we possibly can from those lower ones where,
from the force of habit, the prejudices of the past, and selfish
hopes of the future, we are sure to expend much of our ingenuity and
strength in finding fault with and aiming blows at each other. But
since you have denied me this I will yet be thankful for the
country’s sake that not all Democrats have 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. Vallandigham, while I have not heard of a single one condemning
it. I cannot assert that there are none such. And the name of
President Jackson recalls an instance of pertinent history. After
the battle of New Orleans, and while the fact that the treaty of
peace had been concluded was well known in the city, but before
official knowledge of it had arrived, General Jackson still
maintained martial or military law. Now that it could be said that
the war was over, the clamor against martial law, which had existed
from the first, grew more furious. Among other things, a Mr.
Louaillier published a denunciatory newspaper article. General
Jackson arrested him. A lawyer by the name of Morel procured the
United States Judge Hall to order a writ of habeas corpus to release
Mr. Louaillier. General Jackson arrested both the lawyer and the
judge. A Mr. Hollander ventured to say of some part of the matter
that “it was a dirty trick.” General Jackson arrested him. When the
officer undertook to serve the writ of habeas corpus, General Jackson
took it from him, and sent him away with a copy. Holding the judge
in custody a few days, the general sent him beyond the limits of his
encampment, and set him at liberty with an order to remain till the
ratification of peace should be regularly announced, or until the
British should have left the southern coast. A day or two more
elapsed, the ratification of the treaty of peace was regularly
announced, and the judge and others were fully liberated. A few days
more, and the judge called General Jackson into court and fined him
$1000 for having arrested him and the others named. The General
paid the fine, and then the matter rested for nearly thirty years,
when Congress refunded principal and interest. The late Senator
Douglas, then in the House of Representatives, took a leading part in
the debates, in which the constitutional question was much discussed.
I am not prepared to say whom the journals would show to have voted
for the measure.

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