ARBITRARY
ARRESTS.--THE SUSPENSION OF THE WRIT OF HABEAS
CORPUS.--THE DRAFT.
ARBITRARY ARRESTS.--FIRST SUSPENSION OF THE HABEAS
CORPUS.--AID
AND COMFORT TO THE REBELS.--EXECUTIVE ORDER ABOUT ARRESTS.
--APPOINTMENT OF A COMMISSIONER ON ARRESTS.--OPPOSITION TO THE
GOVERNMENT.--THE CASE OF VALLANDIGHAM.--GOVERNOR SEYMOUR
ON VALLANDIGHAM.--PRESIDENT LINCOLN ON ARRESTS.--PRESIDENT
LINCOLN ON MILITARY ARRESTS.--THE PRESIDENT'S LETTER TO MR.
CORNING.--THE PRESIDENT TO THE OHIO COMMITTEE.--THE PRESIDENT
ON VALLANDIGHAM'S CASE.--THE HABEAS CORPUS SUSPENDED.- PROCLAMATION CONCERNING ALIENS.--THE DRAFT.--THE NEW YORK
RIOTS.--LETTER TO GOVERNOR SEYMOUR.--THE DRAFT RESUMED AND
COMPLETED.
AT the very outbreak of the rebellion, the Administration was compelled to face one of the most formidable.
of the many difficulties which have embarrassed its
action. Long before the issue had been distinctly made
by the rebels in the Southern States, while, under the
protecting toleration of Mr. Buchanan's Administration,
the conspirators were making preparations for armed
resistance to the Government of the United States, evidences were not wanting that they relied upon the active
co-operation of men and parties in the Northern States,
whose political sympathies had always been in harmony
with their principles and their action. As early as in
January, 1861, while the rebels were diligently and
actively collecting arms and other munitions of war, by
purchase in the Northern States, for the contest on which
they had resolved, Fernando Wood, then Mayor of New
York, had apologized to Senator Toombs, of Georgia, for
the seizure by the police of New York of "arms intended
for and consigned to the State of Georgia," and had
assured him that "if he had the power, he should summarily punish the authors of this illegal and unjustifiable seizure of
private property." The departments at Washington, the army and the navy, all places of responsibility and trust under the Government, and all departments of civil and political activity in the Northern
States, were found to be largely filled by persons in
active sympathy with the secession movement, and ready
at all times to give it all the aid and comfort in their
power. Upon the advent of the new Administration,
and when active measures began to be taken for the suppression of the rebellion, the Government found its plans
betrayed and its movements thwarted at every turn.
Prominent presses and politicians, moreover, throughout
the country, began, by active hostility, to indicate their
sympathy with those who sought, under cover of opposition to the Administration, to overthrow the Government, and it became speedily manifest that there was sufficient of treasonable sentiment throughout the North to
paralyze the authorities in their efforts, aided only by the
ordinary machinery of the law, to crush the secession
movement.
Under these circumstances, it was deemed necessary to
resort to the exercise of the extraordinary powers with
which, in extraordinary emergencies, the Constitution
had clothed the Government. That instrument had provided that "the privilege of the writ of habeas
corpus
should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it." By
necessary implication, whenever, in such cases either of
rebellion or invasion, the public safety did require
it, the
privilege of that writ might be suspended; and, from
the very necessity of the case, the Government which
was charged with the care of the public safety, was empowered to judge when the contingency should occur.
The only question that remained was, which
department
of the Government was to meet this responsibility. If
the act was one of legislation, it could only be performed
by Congress and the President; if it was in its nature
executive, then it might be performed, the emergency requiring it, by the President alone. The pressing emergency of the case,
moreover, went far towards dictating the
decision. Congress had adjourned on the 4th of March,
and could not be again assembled for some months;
and infinite and, perhaps fatal mischief might be done
during the interval, if the Northern allies of the rebellion
were allowed with impunity to prosecute their plans.
Under the influence of these considerations, the President, in his proclamation of the 3d of May, 1861, directing the commander of the forces of the United States on
the Florida coast to permit no person to exercise any
authority upon the islands of Key West, the Tortugas,
and Santa Rosa, which might be inconsistent with the
authority of the United States, also authorized him, "if
he should find it necessary, to suspend the writ of habeas
corpus, and to remove from the vicinity of the United
States fortresses all dangerous or suspected persons."
This was the first act of the Administration in that
direction; but it was very soon found necessary to resort
to the exercise of the same powers in other sections of the.
country. On the 25th of May, John Merryman, a resident of Hayfield, in Baltimore County, Maryland, known
by the Government to be in communication with the
rebels, and to be giving them aid and comfort, was
arrested and imprisoned in Fort McHenry, then commanded by General Cadwallader. On the Same day he
forwarded a petition to Roger B. Taney, Chief-Justice of
the United States, reciting the circumstances of his arrest,
and praying for the issue of the writ of habeas
corpus.
The writ was forthwith issued, and General Cadwallader
was ordered to bring the body of Merryman before the
Chief-Justice on the 27th. On that day Colonel Lee presented a written communication from General Cadwallader, stating that Merryman had been arrested and committed to his custody by officers acting under the authority of the United States, charged with various acts of
treason: with holding a commission as lieutenant in a
company avowing its purpose of armed hostility against
the Government, and with having made often and unreserved declarations of his association with this armed force, and of his
readiness to co-operate with those engaged in the present rebellion against the Government
of the United States. The General added, that he was
"duly authorized by the President of the United States
to suspend the writ of habeas
corpus for the public
safety;" and that, while he fully appreciated the delicacy of the trust, he was also instructed "that, in times
of civil strife, errors, if any, should be on the side of
safety to the country." The commanding General accordingly declined to obey the writ, whereupon an
attachment was forthwith issued against him for contempt of court, made returnable at noon on the next day.
On that day, the marshal charged with serving the attachment made return that he was not admitted within
the fortress, and had consequently been unable to serve
the writ. The Chief-Justice, thereupon, read an opinion
that the President could not suspend the writ of habeas
corpus, nor authorize any military officer to do so, and
that a military officer had no right to arrest any person.
not subject to the rules and articles of war, for an offence
against the laws of the United States, except in aid of
the judicial authority, and subject to its control. The
Chief-Justice stated further, that the marshal had the
power to summon out the posse
comitatus to enforce the
service of the writ, but as it was apparent that it would
be resisted by a force notoriously superior, the Court
could do nothing further in the premises.
On the 12th of May, another writ was issued by Judge
Giles, of Baltimore, to Major Morris, of the United States
Artillery, at Fort McHenry, who, in a letter dated the
14th, refused to obey the writ, because, at the time it was
issued, and for two weeks previous, the City of Baltimore had been completely under the control of the rebel
authorities, United States soldiers had been murdered in
the streets, the intention to capture that fort had been
openly proclaimed, and the legislature of the State was
at that moment debating the question of making war
upon the Government of the United States. All this in
his judgment, constituted a case of rebellion, and afforded sufficient
legal cause for suspending the writ of habeas
corpus. Similar cases arose, and were disposed of in a
similar manner, in other sections of the country.
The Governor of Virginia had proposed to Mr. G.
Heincken, of New York, the agent of the New York and
Virginia Steamship Company, payment for two steamers
of that line, the Yorktown and Jamestown, which he had
seized for the rebel service, an acceptance of which proffer,
Mr. Heincken was informed, would be treated as an act
of treason to the Government; and on his application,
Mr. Seward, the Secretary of State, gave him the following reasons for this decision:--
An insurrection has broken out in several of the
States of this Union,
including Virginia, designed to overthrow the Government of the
United
States. The executive authorities of that State are parties to that
insurrection, and so are public enemies. Their action in seizing or
buying
vessels to be employed in executing that design, is not merely
without
authority of law, but is treason. It is treason for any person to
give
aid and comfort to public enemies. To sell vessels to them which it
is
their purpose to use as ships of war, is to give them aid and
comfort. To
receive money from them in payment for vessels which they have
seized
for those purposes, would be to attempt to convert the unlawful
seizure
into a sale, and would subject the party so offending to the pains
and
penalties of treason, and the Government would not hesitate to bring
the
offender to punishment.
These acts and decisions of the Government were vehemently assailed by the party opponents of the Administration, and led to the most violent and intemperate
assaults upon the Government in many of the public
prints. Some of these journals were refused the privilege of the public mails, the Government not holding
itself under any obligation to aid in circulating assaults
upon its own authority, and stringent restrictions were
placed upon the transmission of intelligence by telegraph.
On the 5th of July, 1869, Attorney-General Bates transmitted to the President an elaborate opinion, prepared at
his request, upon his power to make arrests of persons
known to have criminal complicity with the insurgents,
or against whom there is probable cause for suspicion
of such criminal complicity, and also upon his right to refuse to obey a
writ of habeas corpus in
case of such
arrests. The Attorney-General discussed the subject at
considerable length, and reached a conclusion favorable
to the action of the Government. From that time forward the Government exerted, with vigor and energy, all
the power thus placed in its hands to prevent the rebellion from receiving aid from those in sympathy with its
objects in the Northern States. A large number of
persons, believed to be in complicity with the insurgents,
were placed in arrest, but were released upon taking an
oath of allegiance to the United States Baltimore continued for some time to be the head-quarter's of conspiracies and movements of various kinds in aid of the rebellion, and the arrests were consequently more numerous
there than elsewhere. Indeed, very strenuous efforts
were made throughout the summer to induce some action
on the part of the legislature which would place the State
in alliance with the Rebel Confederacy, and it was confidently believed that an ordinance looking to this end
would be passed at the extra session which was convened
for the 17th of September; but on the 16th, nine secession
members of the House of Delegates, with the officers of
both houses, were arrested by General McClellan, then
in command of the army, who expressed his full approbation of the proceedings, and the session was not held.
The President at the time gave the following statement
of his views in regard to these arrests:--
The public safety renders it necessary that the
grounds of these arrests
should at present be withheld, but at the proper time they will be
made
public. Of one thing the people of Maryland may rest assured, that
no
arrest has been made, or will be made, not based on substantial and
un mistakable complicity with those in armed rebellion against the
Government of the United States. In no case has an arrest been made on
mere
suspicion, or through personal or partisan animosities; but in all
cases
the Government is in possession of tangible and unmistakable
evidence,
which will, when made public, be satisfactory to every loyal
citizen.
Arrests continued to be made under authority of the
State Department, not without complaint, certainly, from
large numbers of the people, but with the general acquiescence of the
whole community, and beyond all question
greatly to the advantage of the Government and the country. On the 14th of February, 1862, an order was issued
on the subject, which transferred control of the whole
matter to the War Department. The circumstances which
had made these arrests necessary are stated with so much
clearness and force in that order, that we insert it at
length, as follows:--
EXECUTIVE ORDERS IN RELATION TO
STATE PRISONERS.
WAR DEPARTMENT, WASHINGTON, February
14.
The breaking out of a formidable insurrection,
based on a conflict of
political ideas, being an event without precedent in the United
States,
was necessarily attended by great confusion and perplexity of the
public
mind. Disloyalty, before unsuspected, suddenly became bold, and
treason
astonished the world by bringing at once into the field military
forces
superior in numbers to the standing army of the United States.
Every department of the Government was paralyzed by
treason. Defection appeared in the Senate, in the House of Representatives, in
the
Cabinet, in the Federal Courts; ministers and consuls returned from
foreign countries to enter the insurrectionary councils, or land or
naval
forces; commanding and other officers of the army and in the navy
betrayed the councils or deserted their posts for commands in the
insurgent
forces. Treason was flagrant in the revenue and in the post-office
service,
as well as in the Territorial governments and in the Indian
reserves.
Not only governors, judges, legislators, and
ministerial officers in the
States, but even whole States, rushed, one after another, with
apparent
unanimity, into rebellion. The Capital was besieged, and its
connection
with all the States cut off.
Even in the portions of the country which were most
loyal, political
combinations and secret societies were formed, furthering the work
of
disunion, while, from motives of disloyalty or cupidity, or from
excited
passions or perverted sympathies, individuals were found furnishing
men,
money, and materials of war and supplies to the insurgents' military
and
naval forces. Armies, ships, fortifications, navy yards, arsenals,
military
posts and garrisons, one after another, were betrayed or abandoned
to the
insurgents.
Congress had not anticipated and so had not
provided for the emergency.
The municipal authorities were powerless and inactive. The judicial
machinery seemed as if it had been designed not to sustain the
Government,
but to embarrass and betray it.
Foreign intervention, openly invited and
industriously instigated by the
abettors of the insurrection, became imminent, and has only been
prevented by the practice of strict and impartial justice, with the
most perfect
moderation in our intercourse with nations.
The public mind was alarmed and apprehensive, though fortunately
not distracted or disheartened. It seemed to be doubtful whether the
Federal Government, which one year before had been thought a model
worthy of universal acceptance, had indeed the ability to defend and
maintain itself.
Some reverses, which perhaps were unavoidable, suffered by newly
levied and inefficient forces, discouraged the loyal, and gave new
hopes
to the insurgents. Voluntary enlistments seemed about to cease, and
desertions commenced. Parties speculated upon the question whether
conscription had not become necessary to fill up the armies of the
United
States.
In this emergency the President felt it his duty to employ with
energy
the extraordinary powers which the Constitution confides to him in
cases
of insurrection. He called into the field such military and naval
forces,
unauthorized by the existing laws, as seemed necessary. He directed
measures to prevent the use of the post-office for treasonable
correspondence. He subjected passengers to and from foreign countries to new
passport regulations, and he instituted a blockade, suspended the
writ of
habeas corpus in
various places, and caused persons who were represented
to him as being or about to engage in disloyal or treasonable
practices to
be arrested by special civil as well as military agencies, and
detained in
military custody, when necessary, to prevent them and deter others
from
such practices. Examinations of such cases were instituted, and some
of
the persons so arrested have been discharged from time to time,
under
circumstances or upon conditions compatible, as was thought, with
the
public safety.
Meantime a favorable change of public opinion has occurred. The line
between loyalty and disloyalty is plainly defined; the whole
structure of
the Government is firm and stable; apprehensions of public danger
and
facilities for treasonable practices have diminished with the
passions which
prompted heedless persons to adopt them. The insurrection is
believed
to have culminated and to be declining.
The President, in view of these facts, and anxious to favor a return
to
the normal course of the Administration, as far as regard for the
public
welfare will allow, directs that all political prisoners or state
prisoners
now held in military custody, be released on their subscribing to a
parole
engaging them to render no aid or comfort to the enemies in
hostility to
the United States.
The Secretary of War will, however, at his discretion, except from
the
effect of this order any persons detained as spies in the service of
the insurgents, or others whose release at the present moment may be
deemed
incompatible with the public safety.
To all persons who shall be so released, and who shall keep their
parole, the President grants an amnesty for any past offences of
treason or dis loyalty which they may have committed.
Extraordinary arrests will hereafter be made under
the direction of the
military authorities alone.
By order of the President:
EDWIN M. STANTON. Secretary
of War.
On the 27th of the same month, a commission was appointed by the War Department, consisting of Major-General Dix and Hon. Edwards Pierrepont, of New
York, to examine into the cases of the state prisoners
then remaining in custody, and to determine whether, in
view of the public safety and the existing rebellion, they
should be discharged, or remain in arrest, or be remitted
to the civil tribunals for trial. These gentlemen entered
at once upon the discharge of their duties, and a large
number of prisoners were released from custody on taking
the oath of allegiance. Wherever the public safety
seemed to require it, however, arrests continued to be
made--the President, in every instance, assuming all the
responsibility of these acts, and throwing himself upon
the courts and the judgment of the country for his vindication. But the President himself had not up to this time
directed any general suspension of the writ of habeas
corpus, or given any public notice of the rules by which
the Government would be guided in its action upon cases
that might arise. It was left to the Secretary of War to
decide in what instances and for what causes arrests should
be made, and the privilege of the writ should be suspended. In some of the courts into which these cases
were brought, the ground was accordingly taken that,
although the President might have authority under the
Constitution, when, in cases of rebellion or invasion, the
public safety should require it, to suspend the writ, he
could not delegate that authority to any subordinate. To
meet this view, therefore, the President, on the 24th of
September, 1862, issued the following.
PROCLAMATION.
Whereas, it has been necessary to call into
service, not only volunteers,
but also portions of the militia of the States by draft, in order to
suppress the insurrection existing in the United States, and
disloyal persons are
not adequately restrained by the ordinary processes of law from
hindering
this measure, and from giving aid and comfort in various ways to the
insurrection
Now, therefore, be it ordered--
First. That during the existing
insurrection, and as a necessary measure for suppressing the
same, all rebels and insurgents, their aiders and abettors,
within the United States, and all persons discouraging volunteer
enlist ments, resisting military drafts, or guilty of any disloyal practice
affording
aid and comfort to the rebels against the authority of the United
States,
shall be subject to martial law, and liable to trial and punishment
by
courts-martial or military commission.
Second. That the writ of habeas
corpus is suspended
in respect to all
persons arrested, or who are now, or hereafter during the rebellion
shall
be, imprisoned in any fort, camp, arsenal, military prison, or other
place
of confinement, by any military authority, or by the sentence of any
court-martial or military commission.
In witness whereof, I have hereunto set my hand and
seal, and caused
the seal of the United States to be affixed.
|
Done at the City of Washington, this
twenty-fourth day of September,
in the year of our Lord one thousand eight hundred and
sixty-two, and of the independence of the United States
the eighty-seventh. |
[L. S.]
|
ABRAHAM LINCOLN.
By the President:
WILLIAM H. SEWARD, Secretary
of State.
This proclamation was accompanied by orders from the
War Department appointing a Provost-Marshal-General,
whose head-quarters were to be at Washington, with
special provost-marshals, one or more in each State,
charged with the duty of arresting deserters and disloyal
persons, and of inquiring into treasonable practices
throughout the country. They were authorized to call
upon either the civil or military authority for aid in the
discharge of their duties, and were required to report to
the department at Washington. The creation of this new
department had been made necessary by the increased
activity of the enemies of the Government throughout the
North, and by the degree of success which had attended
their efforts. Prompted partly by merely political and
partisan motives, but in many instances by thorough sympathy with the secession movement, active political leaders had set in
vigorous motion very extensive machinery
for the advancement of their designs. "Peace-meetings"
were held in every section of the Northern States, at which
the action of the Government was most vehemently assailed, the objects of the war were misrepresented, and its
prosecution denounced, and special efforts made to prevent
enlistments, to promote desertions, and in every way to
cripple the Government in its efforts to subdue the rebellion by force of arms. The vigorous action of the Government, however, in arresting men conspicuous in these.
disloyal practices, had created a salutary reaction in the
public mind, and had so far relieved the Administration
from apprehension as to warrant the promulgation of the
following order:--
WAR DEPARTMENT, WASHINGTON, November 22,
1862.
Ordered--1. That all persons now in military
custody, who have been
arrested for discouraging volunteer enlistments, opposing the draft,
or for
otherwise giving aid and comfort to the enemy, in States where the
draft
has been made, or the quota of volunteers and militia has been
furnished.
shall be discharged from further military restraint.
2. The persons who, by the authority of the
military commander or
governor in rebel States, have been arrested and sent from such
State for
disloyalty or hostility to the Government of the United States, and
are
now in military custody, may also be discharged upon giving their
parole
to do no act of hostility against the Government of the United
States, nor
render aid to its enemies. But all such persons shall remain subject
to
military surveillance and liable to arrest on breach of their
parole. And
if any such persons shall prefer to leave the loyal States on
condition of
their not returning again during the war, or until special leave for
that
purpose be obtained from the President, then such persons shall, at
his
option, be released and depart from the United States, or be
conveyed
beyond the military lines of the United States forces.
3. This order shall not operate to discharge any
person who has been in
arms against the Government, or by force and arms has resisted or
at tempted to resist the draft, nor relieve any person from liability
to trial
and punishment by civil tribunals, or by court-martial or military
commission, who may be amenable to such tribunals for offences committed.
By order of the Secretary of War:
E. D. TOWNSEND, Assistant
Adjutant-General.
During the succeeding winter, while Congress was in
session, public sentiment was comparatively at rest on this subject.
Congress had enacted a law, sanctioning the
action of the President in suspending the writ of habeas
corpus, and clothing him with full authority to check and
punish all attempts to defeat the efforts of the Government
in the prosecution of the war. After the adjournment,
however, when the political activity of the country was
transferred from the Capital to the people in their respective localities, the party agitation was revived, and public
meetings were again held to denounce the conduct of the
Government, and to protest against the full prosecution of the war. One of the most active of these advocates of peace with the Rebel Confederacy was Hon. C. L.
Vallandigham, member of Congress from Ohio, who had
steadily opposed all measures for the prosecution of the
war throughout the session. After the adjournment he
made a political canvass of his district, and in a speech at
Mount Vernon, on the 1st of May, he denounced the Government at Washington as aiming, in the conduct of the
war, not to restore the Union, but to crush out liberty and
establish a despotism. He declared that the war was
waged for the freedom of the blacks and the enslaving of
the whites--that the Government could have had peace
long before if it had desired it--that the mediation of
France ought to have been accepted, and that the Government had deliberately rejected propositions by which the
Southern States could have been brought back to the
Union. He also denounced an order, No. 38, issued by
General Burnside, in command of the department, forbidding certain disloyal practices, and giving notice that persons declaring sympathy for the enemy would be arrested
for trial, proclaimed his intention to disobey it, and called
on the people who heard him to resist and defeat its execution.
For this speech Mr. Vallandigham was arrested, by order
of General Burnside, on the 4th of May, and ordered for
trial before a court-martial at Cincinnati. On the 5th, he
applied, through his counsel, Senator Pugh, to the Circuit
Court of the United States for a writ of habeas
corpus
In reply to this application, a letter was read from General Burnside,
setting forth the considerations which had
led him to make the arrest, and Vallandigham's counsel
was then heard in a very long argument on the case.
Judge Stewart pronounced his decision, refusing the
writ,
on the ground that the action of General Burnside was
necessary for the public safety. "The legality of the arrest," said the judge, "depends upon the extent of the
necessity for making it, and that was to be determined by
the military commander." And he adds--
Men should know and lay the truth to heart, that
there is a course of
conduct not involving overt treason, and not therefore subject to
punishment as such, which, nevertheless, implies moral guilt, and a gross
offence
against the country. Those who live under the protection and enjoy
the
blessings of our benignant Government, must learn that they cannot
stab
its vitals with impunity. If they cherish hatred and hostility to
it, and
desire its subversion, let them withdraw from its jurisdiction, and
seek the
fellowship and protection of those with whom they are in sympathy.
If
they remain with us, while they are not of us, they must be subject
to
such a course of dealing as the great law of self-preservation
prescribes
and will enforce. And let them not complain if the stringent
doctrine of
military necessity should find them to be the legitimate subjects of
its
action. I have no fear that the recognition of this doctrine will
lead to
an arbitrary invasion of the personal security, or personal liberty,
of the
citizen. It is rare indeed that a charge of disloyalty will be made
on
insufficient grounds. But if there should be an occasional mistake,
such
an occurrence is not to be put in competition with the preservation
of the
nation; and I confess I am but little moved by the eloquent appeals
of
those who, while they indignantly denounce violation of personal
liberty,
look with no horror upon a despotism as unmitigated as the world has
ever witnessed.
The military commission, before which Vallandigham
was ordered for trial, met on the 6th, found him guilty of
the principal offences charged, and sentenced him to be
placed in close confinement in some fortress of the United
States, to be designated by the commanding officer of that
department. Major-General Burnside approved the sentence, and designated Fort Warren, in Boston Harbor, as
the place of confinement. The President modified this
sentence by directing that, instead of being imprisoned,
Mr. Vallandigham should be sent within the rebel lines,
and should not return to the United States until after the termination
of the war. This sentence was at once carried
into execution.
The arrest, trial, and sentence of Mr. Vallandigham
created a good deal of excitement throughout the country.
The opponents of the Administration treated it as a case
of martyrdom, and held public meetings for the purpose
of denouncing the action of the Government as tyrannical.
and highly dangerous to the public liberties. One of the
earliest of these demonstrations was held at Albany, N. Y.,
on the 16th of May, at which Hon. Erastus Corning presided, and to which Governor Seymour addressed a letter,
expressing in the strongest terms his condemnation of the
course pursued by the Government. "If this proceeding," said he, speaking of the arrest of Vallandigham, "is
approved by the Government, and sanctioned by the
people, it is not merely a step towards revolution--it is
revolution. It will not only lead to military despotism-it establishes military despotism. In this aspect it must
be accepted, or in this aspect rejected. *
* * The
people of this country now wait with the deepest anxiety
the decision of the Administration upon these acts. Having given it a generous support in the conduct of the war,
we pause to see what kind of a government it is for which
we are asked to pour out our blood and our treasure.
The action of the Administration will determine, in the
minds of more than one-half of the people of the loyal
States, whether this war is waged to put down rebellion
at the South, or destroy free institutions at the North."
The resolutions which were adopted at this meeting
pledged the Democratic party of the State to the preservation of the Union, but condemned in strong terms the
whole system of arbitrary arrests, and the suspension of
the writ of habeas corpus.
A copy of these resolutions was forwarded by the presiding officer to President Lincoln, who sent the following letter in reply:--
EXECUTIVE MANSION, WASHINGTON, June 13,
1868.
Hon. ERASTUS CORNING AND OTHERS:
Gentlemen:--Your letter of May 19, enclosing the
resolutions of a public meeting held at Albany, N. Y., on the 16th
of the same month, was received
several days ago.
The resolutions, as I understand them, are resolvable into two
propositions: first, the expression of a purpose to sustain the cause of
the Union,
to secure peace through victory, and to support tile Administration
in
every constitutional and lawful measure to suppress the rebellion;
and,
secondly, a declaration of censure upon the Administration for
supposed
unconstitutional action, such as the making of military arrests. And
from
the two propositions a third is deduced, which is, that the
gentlemen
composing the meeting are resolved on doing their part to maintain
our
common Government and country, despite the folly or wickedness, as
they may conceive, of any Administration. This position is eminently
patriotic, and as such I thank the meeting and congratulate the
nation for
it. My own purpose is the same, so that the meeting and myself have
a
common object, and can have no difference, except in the choice of
means
or measures for effecting that object.
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
sup press 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; 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,
be cause 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 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 arrest.
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 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 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," 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 were inaungurating, 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
machinery was put fairly 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 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 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
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
low 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 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 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 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
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
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 was no other reason for the arrest, then I
con cede 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
en courage 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 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.
Vallandigham
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 reasonable 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
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 constitutional, 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 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 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 on a level one step higher
than
any party platform; because I am sure that, from such more elevated
position, we could do better battle for the country we all love than
we
possibly can from those lower 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. 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
still maintained martial or military law. Now that it could be said
the
war was over, the clamor against martial law, which had existed from
the first, grew more furious. Among other things, a Mr. Louiallier
published 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.
Louiallier. 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
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
$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
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 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 as
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 ever 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
particular 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 arbitrary arrests will have the effect to divide and distract those who
should
be united in suppressing the rebellion, and I am specifically called
on to
discharge Mr. Vallandigham. I regard this as, at least, a fair
appeal to
me on the expediency of exercising a constitutional power which I
think
exists. In response to such appeal, I have to say, it gave me pain
when
I learned that Mr. Vallandigham had been arrested--that is, I was
pained
that there should have seemed to be a necessity for arresting
him--and
that it will afford me great pleasure to discharge him so soon as I
can, by
any means, believe the public safety will not suffer by it. 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
required 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 11th
of June, a State Convention of the Democratic party was
held at Columbus, Ohio, for the nomination of State officers. Mr.
Vallandigham 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 Lieutenant-Governor, and resolutions were adopted protesting against President Lincoln's emancipation proclamation; condemning martial
law in loyal States, where war does not exist; denouncing the suspension of the writ of habeas
corpus; protesting very strongly against the banishment of Vallandigham, 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. Vallandigham,
their candidate for Governor. To this, President Lincoln.
made the following reply:--
WASHINGTON, June 29,
1863.
GENTLEMEN:--The resolutions of the Ohio Democratic
State Convention, which you present me, together with your introductory and
closing
remarks, being in position and argument mainly the same as the
resolutions of the Democratic meeting at Albany, New York, I refer you to
my
response to the latter as meeting most of the points in the former.
This response you evidently used in preparing your
remarks, and I de sire no more than that it be used with accuracy. In a single reading
of your
remarks, I only discovered one inaccuracy in matter which I suppose
you
took from that paper. It is where you say, "The undersigned are
unable
to agree with you in the opinion you have expressed that the
Constitution is different in time of insurrection or invasion from what it
is in time
of peace and public security."
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 what it is in times of profound peace and
public
security; and this opinion I adhere to, simply because by the
Constitution itself things may be done in the one case which may not be done
in
the other.
I dislike to waste a word on a merely personal point, but I must respectfully assure you that you will find yourselves at fault should
you
ever seek for evidence to prove your assumption that I "opposed in
discussions before the people the policy of the Mexican war."
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
limitation upon the power of Congress, were expunged, the other
guarantees would remain the same; but the question is, not how those
guarantees would stand with that clause out of
the Constitution, but how they
stand with that clause remaining in it, in case of rebellion or
invasion,
involving the public safety. If the liberty could be indulged in
expunging that clause, letter and spirit, I really think the
constitutional argument would be with you.
My general view on this question was stated in the Albany response,
and hence I do not state it now. I only add that, as seems to me,
the
benefit of the writ of habeas
corpus is the great
means through which
the guarantees of personal liberty are conserved and made available
in
the last resort; and corroborative of this view is the fact that Mr.
Vallandigham, in the very case in question, under the advice of able
lawyers, saw not where else to go but to the habeas
corpus. But by the
Constitution the benefit of the writ of habeas
corpus itself 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 me 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
decision, but it does not expressly declare who is to decide it. By
necessary 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
Constitution.
The earnestness with which you insist that persons can only, in
times
of rebellion, be lawfully dealt with in accordance with the rules
for
criminal trials and punishments in times of peace, induces me to add
a word to what I 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
military arrests and detentions which have been made, including those of
Mr. Vallandigham, which are not different in principle from the
other,
have been for prevention,
and not for punishment--as
injunctions to stay
injury, as proceedings to keep the peace--and hence, like
proceedings in
such cases and for like reasons, they have not been accompanied with
indictments, 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
prevent injury to the military service only, and the modification of
it
was made as a less disagreeable mode to him of securing the same
prevention.
I am unable to perceive an insult to Ohio in the case of Mr. Vallandigham. Quite surely nothing of this sort was or is intended. I was
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 cause, as you claim, he has not damaged the military service by
discouraging enlistments, encouraging desertions, or otherwise; and that if
he
had, he should have been turned over to the civil authorities under
the
recent acts of Congress. I certainly do not know that
Mr. Vallandigham
has specifically and by direct language advised against enlistments
and
in favor of desertions and resistance to drafting. We all know that
combinations, armed in some instances, to resist the arrest of
deserters,
began several months ago; that more recently the like has appeared
in
resistance to the enrolment preparatory to a draft; and that quite a
number of assassinations have occurred from the same animus. These
had to be met by military force, and this again has led to bloodshed
and
death. And now, under a sense of responsibility more weighty and
enduring than any which is merely official, I solemnly declare my
belief
that this hindrance of the military, including maiming and murder,
is due
to the cause in which Mr. Vallandigham has been engaged, in a
greater
degree than to any other cause; and it is due to him personally in a
greater degree than to any other man.
These things have been notorious, known to all, and of course known
to Mr. Vallandigham. Perhaps I would not be wrong to say they
originated with his especial friends and adherents. With perfect
knowledge
of them, he has frequently, if not constantly, made speeches in Congress and before popular assemblies; and if it can be shown that with these things staring him in the face, he has ever uttered a
word of rebuke or counsel against them, it will be a fact greatly in his
favor with me, and of which, as yet, I am totally ignorant. When it is
known that the whole burden of his speeches has been to stir up men
against the prosecution of the war, and that in the midst of resistance to it he
has not been known in any instance to counsel against such resistance,
it is next to impossible to repel the inference that he has counselled
directly in favor of it. With all this before their eyes, the convention you
represent have nominated Mr. Vallandigham for Governor of Ohio, and both they and you have declared the purpose to sustain the National Union by all
constitutional means; but, of course, they and you, in common, reserve
to yourselves to decide what are constitutional means, and, unlike the Albany meeting, you omit to state or intimate that, in your opinion,
an army is a constitutional means of saving the Union against a
rebellion, or even to intimate that you are conscious of an existing rebellion
being in progress with the avowed object of destroying that very Union. At the same time, your nominee for Governor, in whose behalf you
appeal, is known to you, and to the world, to declare against the use of an
army to suppress the rebellion. Your own attitude, therefore, encourages desertion, resistance to the draft, and the like, because it,
teaches those who incline to desert and to escape the draft to believe it is your
purpose to protect them, and to hope that you will become strong enough
to do so.After a short personal intercourse with you, gentlemen of the
committee, I cannot say I think you desire this effect to follow your
attitude; but I assure you that both friends and enemies of the Union look
upon it in this light. It is a substantial hope, and, by consequence, a real strength to the enemy. If it is a false hope, and one which you
would willingly dispel, I will make the way exceedingly easy. I send you duplicates of this letter, in order that you, or a majority, may, if
you choose, indorse your names upon one of them, and return it thus
indorsed to me, with the understanding that those signing are thereby
committed to the following propositions, and to nothing else:--
|
1. |
That there is
now rebellion in the United States, the object and tendency
of which is to destroy the National Union; and that, in your opinion,
an army and navy are constitutional means for suppressing
that rebellion. |
| 2. |
That no one of
you will do any thing which, in his own judgment, will
tend to hinder the increase, or favor the decrease, or
lessen the efficiency
of the army and navy, while engaged in the effort to
suppress that
rebellion; and,-- |
| 3. |
That each of
you will, in his sphere, do all he can to have the
officers, soldiers, and seamen of the army and navy, while
engaged in the effort
to suppress the rebellion, paid, fed, clad, and otherwise
well provided for and supported. |
And with the further understanding that upon
receiving the letter
and names thus indorsed, I will cause them to be published, which
publication shall be, within itself, a revocation of the order in
relation to
Mr. Vallandigham.
It will not escape observation that I consent to
the release of Mr.
Vallandigham upon terms not embracing any pledge from him or from
others as to what he will or will not do. I do this because he is
not
present to speak for himself, or to authorize others to speak for
him;
and hence I shall expect that on returning he would not put himself
practically in antagonism with the position of his friends. But I do
it
chiefly because I thereby prevail on other influential gentlemen of
Ohio
to so define their position as to be of immense value to the
army--thus
more than compensating for the consequences of any mistake in
allowing
Mr. Vallandigham to return, so that, on the whole, the public safety
will
not have suffered by it. Still, in regard to Mr. Vallandigham and
all
others, I must hereafter, as heretofore, do so much as the public
service
may seem to require.
I have the honor to be respectfully yours, &c.,
A. LINCOLN.
The canvass throughout the summer was very animated.
As a matter of course, the opponents of the Administration
in Ohio, as elsewhere throughout the country, made this
matter of arbitrary arrests a very prominent point of attack.
Special stress was laid upon the fact that, instead of acting
directly and upon his own responsibility in these cases,
the President left them to the discretion of military commanders in the several departments. This was held to be
in violation of the law of Congress which authorized the
President to suspend the writ of habeas
corpus, but not
to delegate that high prerogative. To meet this objection,
therefore, and also in order to establish a uniform mode
of action on the subject, the President issued the following
PROCLAMATION.
Whereas, the Constitution of the United
States has ordained 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;
and, whereas, a rebellion was existing on the 3d day of March, 1863,
which
rebellion is still existing; and, whereas, by a statute which was
approved on that day, it was enacted by the Senate and House of
Representatives
of the United States, in Congress assembled, that during the present
insurrection the President of the United States, whenever, in his
judgment,
the public safety may require, is authorized to suspend the
privilege of the
writ of habeas corpus in
any case throughout the United States, or any
part thereof; and, whereas, in the judgment of the President the
public
safety does require that the privilege of the said writ shall now be
suspended throughout the United States in cases where, by the authority
of
the President of the United States, military, naval, and civil
officers of the
United States, or any of them, hold persons under their
command or in
their custody, either as prisoners of war, spies, or aiders or
abettors of the
enemy, or officers, soldiers, or seamen enrolled, drafted, or
mustered, or
enlisted in, or belonging to the land or naval forces of the United
States,
or as deserters there from, or otherwise amenable to military law, or
to
the rules and articles of war, or the rules and regulations
prescribed for the
military or naval services by the authority of the President of the
United
States, or for resisting the draft, or for any other offence against
the military
or naval service: Now, therefore, I, Abraham Lincoln, President of
the
United States, do hereby proclaim and make known to all whom it may
concern, that the privilege of the writ of habeas
corpus is suspended
throughout
the United States in the several cases before mentioned, and that
this suspension will continue throughout the duration of the said rebellion,
or
until this Proclamation shall, by a subsequent one, to be issued by
the
President of the United States, be modified and revoked. And I do
here by require all magistrates, attorneys, and other civil officers
within
the United States, and all officers and others in the military and
naval
services of the United States, to take distinct notice of this
suspension and
give it full effect, and all citizens of the United States to
conduct and
govern themselves accordingly, and in conformity with the
Constitution
of the United States and the laws of Congress in such cases made and
provided.
In testimony whereof, I have hereunto set my hand
and caused the seal
of the United States to
be affixed, this fifteenth day of September, in the
year of our Lord one thousand eight hundred and sixty-three, and of
the
independence of the United States of America the eighty-eighth.
ABRAHAM LINCOLN.
By the President:
WM. H. SEWARD, Secretary
of State.
The act passed by Congress "for enrolling and calling
out the national forces," commonly called the Conscription Act, provided that all able-bodied male citizens, and
persons of foreign birth who had declared their intention
to become citizens, between the ages of twenty and forty-five, were liable to be called into service. The strenuous efforts made
by the enemies of the Administration to arouse
the hostility of the people against its general policy, had
proved so far successful as greatly to discourage volunteer enlistments; and the Government was thus compelled
to resort to the extraordinary powers conferred upon it
by this act. Questions had been raised as to the liability
of foreigners to be drafted under this law; and in order
to settle this point, the President, on the 8th of May, issued
the following proclamation.
WASHINGTON, May 8,
1863.
By the President of the United
States of America.
PROCLAMATION.
Whereas, the Congress of the United States,
at its last session, enacted
a law, entitled "An Act for enrolling and calling out the national
forces,
and for other purposes," which was approved on the 3d day of March
last; and
Whereas, it is recited in the said act that
there now exists in the United
States an insurrection and rebellion against the authority thereof,
and it
is, under the Constitution of the United States, the duty of the
Government to suppress insubordination and rebellion, to guarantee to each
State
a republican form of government, and to preserve the public
tranquillity;
and
Whereas, for these high purposes, a military
force is indispensable, to
raise and support which all persons ought willingly to contribute;
and
Whereas, no service can be more praiseworthy
and honorable than
that which is rendered for the maintenance of the Constitution and
the
Union, and the consequent preservation of free government; and
Whereas, for the reasons thus recited it was
enacted by the said statute that all able-bodied male citizens of the United States, and
persons
of foreign birth who shall have declared on oath their intentions to
become
citizens under and in pursuance of the laws thereof, between the
ages of
twenty and forty-five years, with certain exemptions not necessary
to be
here mentioned, are declared to constitute the National forces, and
shall
be liable to perform military duty in the service of the United
States,
when called out by the President for that purpose; and
Whereas, it is claimed, on and in behalf of
persons of foreign birth, with in the ages specified in said act, who have heretofore declared on
oath their
intentions to become citizens under and in pursuance to the laws of
the
United States, and who have not exercised the right of suffrage, or
any
other political franchise under the laws of the United States, or of
any of
the States thereof, that they are not absolutely precluded by their
afore said declaration of intention from renouncing their purpose to
become
citizens; and that, on the contrary, such persons, under treaties
and the law of nations, retain a right to renounce that purpose, and
to forego
the privilege of citizenship and residence within the United States,
under
the obligations imposed by the aforesaid act of Congress:
Now, therefore, to avoid all misapprehensions
concerning the liability of
persons concerned to perform the service required by such enactment,
and
to give it full effect, I do hereby order and proclaim that no plea
of alien age will be received, or allowed to exempt from the obligations
imposed
by the aforesaid act of Congress any person of foreign birth who
shall
have declared on oath his intention to become a citizen of the
United
States, under the laws thereof, and who shall be found within the
United
States at any time during the continuance of the present
insurrection and
rebellion, at or after the expiration of the period of sixty-five
days from the
date of this proclamation; nor shall any such plea of alienage be
allowed
in favor of any such person who has so, as aforesaid, declared his
intention to become a citizen of the United States, and shall have
exercised at
any time the right of suffrage, or any other political franchise
within the
United States, under the laws thereof, or under the laws of any of
the
several States.
In witness whereof, I have hereunto set my hand,
and caused the seal
of the United States to be affixed.
|
Done at the City of Washington, this 8th
day of May, in the year of our Lord
one thousand eight hundred and sixty-three, and of the
independence of the United States the eighty-seventh. |
[ L.S.] |
ABRAHAM LINCOLN.
By the President:
WILLIAM H. SEWARD, Secretary
of State.
It was subsequently ordered that the draft should take
place in July, and public proclamation was made of the
number which each State would be required to furnish.
Enrolling officers had been appointed for the several districts of all the States, and, all the names being placed in
a wheel, the number required were to be publicly drawn,
under such regulations as were considered necessary to
insure equal and exact justice. Very great pains had
been taken by the opponents of the Administration to excite
odium against that clause of the law which fixed the price
of exemption from service under the draft at three hundred
dollars. It was represented that this clause was for the
special benefit of the rich, who could easily pay the sum
required; while poor men who could not pay it would be
compelled, at whatever hardships to themselves and their
families, to enter the army. The draft was commenced in
the City of New York on Saturday, July 11th, and was conducted quietly and successfully during that day. On Sunday plots were formed and combinations entered into to resist it; and no sooner was it resumed on Monday morning, July 13, than a sudden and formidable attack was made by an armed mob upon the office in one of the districts; the wheel was destroyed, the lists scattered, and the building set on fire. The excitement spread through the city. Crowds gathered everywhere, with no apparent common object; but during the day the movement seemed to be controlled by leaders in two general directions. The first was an attack upon the negroes; the second an assault upon every one who was supposed to be in any way concerned in the draft, or prominently identified, officially or otherwise, with the Administration or the Republican party. Unfortunately, the militia regiments of the city had been sent to Pennsylvania to withstand the rebel invasion; and the only guardians left for the public peace were the regular police and a few hundred soldiers who garrisoned the forts. Both behaved with the greatest vigor and fidelity, but they were too few to protect the dozen miles between the extremities of the city. The mob, dispersed in one quarter, would reassemble at another, and for four days the city seemed given up to their control. The outrages committed during this time were numerous and aggravated. Negroes were assaulted, beaten to death, mutilated, and hung; building after building was sacked and burned; gangs of desperadoes patrolled the streets, levying contributions, and ordering places of business to be closed. A Colored Orphan Asylum, sheltering some hundreds of children, was sacked and burned. After the first day, the riot, which was at first directed against the draft, took a new turn. The entire mass of scoundrelism in the city seemed to have been let loose for indiscriminate plunder. Women, half-grown boys, and children, were foremost in the work of robbery, and no man felt safe from attack. The police force did their duty manfully, aided at first by the few troops at the disposal of the authorities, and subsequently by the regiments who
began
to return from Pennsylvania. In the street-fights
which occurred, many of the defenders of law and order
lost their lives, while a far larger number of the rioters
were killed. The bands of rioters were finally dispersed,
and the peace of the city was restored.
During these occurrences the draft was necessarily suspended; and on the 3d of August, Governor Seymour
addressed a long letter to the President, asking that further proceedings under the draft might be postponed until
it should be seen whether the number required from the
State of New York could not be raised by volunteering,
and also until the constitutionality of the law could be
tested in the judicial tribunals of the country. The
Governor pointed out an alleged injustice in the application of the law, by which, in four districts of the State of
New York, a far higher quota in proportion to the population was required than in the other districts of the State;
and this was urged as an additional reason for postponing
the further execution of the law.
To this appeal the President, on the 7th of August,
made the following reply:--
EXECUTIVE MANSION, WASHINGTON, August 7,
1863.
His Excellency HORATIO SEYMOUR,
Governor of New York, Albany, N. Y.:
Your communication of the 3d inst. has been
received and attentively
Considered. I cannot consent to suspend the draft in New York, as
you
request, because, among other reasons, TIME is too important. By the
figures you send, which I presume are correct, the twelve districts
represented fall in two classes of eight and four respectively.
The disparity of the quotas for the draft in these
two classes is certainly
very striking, being the difference between an average of 2,200 in
one
class, and 4,864 in the other. Assuming that the districts are
equal, one
to another, in entire population, as required by the plan on which
they
were made, this disparity is such as to require attention. Much of
it,
however, I suppose win be accounted for by the fact that so many
more
persons fit for soldiers are in the city than are in the country,
who have
too recently arrived from other parts of the United States and from
Europe
to be either included in the census of 1860, or to have voted in
1862.
Still, malting due allowance for this, I am yet unwilling to stand
upon it
as an entirely sufficient explanation of the great disparity. I shah
direct
the draft to proceed in all the districts, drawing,
however, at first from
each of the four districts--to wit, the Second, Fourth, Sixth, and
Eighth- only, 2,200 being the average quota of the other class. After this
drawing,
these four districts, and also the Seventeenth and Twenty-ninth,
shall be
carefully re-enrolled; and, if you please, agents of yours may
witness
every step of the process. Any deficiency which may appear by the
new
enrolment will be supplied by a special draft for that object,
allowing due
credit for volunteers who may be obtained from these districts
respectively
during the interval; and at all points, so far as consistent with
practical
convenience, due credits shall be given for volunteers, and your
Excellency shall be notified of the time fixed for commencing a draft in
each
district.
I do not object to abide a decision of the United
States Supreme Court,
or of the Judges thereof, on the constitutionality of the draft law.
In
fact, I should be willing to facilitate the obtaining of it. But I
cannot
consent to lose the time while it is being obtained. We are
contending
with an enemy who, as I understand, drives every able-bodied man he
can reach into his ranks, very much as a butcher drives bullocks
into a
slaughter-pen. No time is wasted, no argument is used. This produces
an army which will soon turn upon our now victorious soldiers
already in
the field, if they shall not be sustained by recruits as they should
be. It
produces an army with a rapidity not to be matched on our side, if
we first
waste time to re-experiment with the volunteer system, already
deemed
by Congress, and palpably, in fact, so far exhausted as to be
inadequate;
and then more time to obtain a Court decision as to whether a law is
constitutional which requires a part of those not now in the service to
go to
the aid of those who are already in it; and still more time to
determine
with absolute certainty that we get those who arc to go in the
precisely
legal proportion to those who are not to go. My purpose is to be in
my
action just and constitutional, and yet practical, in performing the
important duty with which I am charged, of maintaining the unity and the
free
principles of our common country.
Your obedient servant,
A. LINCOLN.
On the 8th Governor Seymour replied, reasserting the
unfairness and injustice of the enrolments, and expressing
his regret at the President's refusal to postpone the draft.
He also sent a voluminous statement, prepared by Judge-Advocate Waterbury, designed to sustain the position he
had previously assumed. To this the President thus replied:--
EXECUTIVE MANSION, WASHINGTON, August 11,
1863.
His Excellency HORATIO SEYMOUR,
Governor of New York:
Yours of the 8th, with Judge-Advocate General
Waterbury's report,
was received to-day.
Asking you to remember that I consider time as
being very important,
both to the general cause of the country and to the soldiers in the
field, I
beg to remind you that I waited, at your request, from the 1st until
the
6th inst., to receive your communication dated the 3d. In view of
its
great length, and the known time and apparent care taken in its
preparation, I did not doubt that it contained your full case as you
desired to
present it. It contained the figures for twelve districts, omitting
the
other nineteen, as I suppose, because you found nothing to complain
of
to them. I answered accordingly. In doing so I laid down the
principle
to which I purpose adhering, which is to proceed with the draft, at
the
same time employing infallible means to avoid any great wrong. With
the communication received to-day you send figures for twenty-eight
districts, including the twelve sent before, and still omitting three,
for which
I suppose the enrolments are not yet received. In looking over the
fuller
list of twenty-eight districts, I find that the quotas for sixteen
of them are
above 2,000 and below 2,700, while, of the rest, six are above 2,700
and
six are below 2,000. Applying the principle to these new facts, the
Fifth
and Seventh Districts must be added to the four in which the quotas
have
already been reduced to 2,200 for the first draft; and with these
four
others must be added to those to be re-enrolled. The correct case
will
then stand: the quotas of the Second, Fourth, Fifth, Sixth, Seventh,
and
Eighth Districts fixed at 2,200 for the first draft. The
Provost-Marshal
General informs me that the drawing is already completed in the Sixteenth, Seventeenth, Eighteenth, Twenty-second, Twenty-fourth,
Twenty sixth, Twenty-seventh, Twenty-eighth, Twenty-ninth, and Thirtieth
Districts. In the others, except the three outstanding, the drawing
will be
made upon the quotas as now fixed. After the first draft, the
Second,
Fourth, Fifth, Sixth, Seventh, Eighth, Sixteenth, Seventeenth,
Twenty first, Twenty-fifth, Twenty-ninth, and Thirty-first will be enrolled
for the
purpose, and in the manner stated in my letter of the 7th inst. The
same
principle will be applied to the now outstanding districts when they
shall
come in. No part of my former letter is repudiated by reason of not
being restated in this, or for any other cause.
Your obedient servant,
A. LINCOLN.
The draft in New York was resumed on the 19th of August, and as ample
preparations had been made for the preservation of the public
peace, it encountered no further opposition. In every other part of the
country the proceedings were conducted and completed without resistance.
Some difficulty was experienced in Chicago, and the
Mayor and Comptroller of that city addressed the President on the subject of alleged frauds in the enrolment,
and received the following dispatch in reply:--
WASHINGTON, August 27,
1863.
F. C. SHERMAN, Mayor; J. S. HAYS, Comptroller:
Yours of the 24th, in relation to the draft, is
received. It seems to me
the Government here will be overwhelmed if it undertakes to conduct
these matters with the authorities of cities and counties. They must
be
conducted with the Governors of States, who will, of course,
represent
their cities and counties. Meanwhile, you need not be uneasy until
you
again hear from here. A. LINCOLN.
Subsequently, in reply to further representations on the
subject, the same gentlemen received the following:--
WASHINGTON, September 7,
1863.
Yours of August 29th just received. I suppose it
was intended by Congress that this Government should execute the act in question
without
dependence upon any other Government, State, City, or County. It is,
however, within the range of practical convenience to confer with
the
Governments of States, while it is quite beyond that range to have
correspondence on the subject with counties and cities. They are too
numerous. As instances, I have corresponded with Governor Seymour, but
not with Mayor Opdyke; with Governor Curtin, but not with Mayor
Henry.
A. LINCOLN.
|
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