PUBLIC DOCUMEOTS. 



801 



fully 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 ef- 

 forts to destroy Union, Constitution, and law, all to- 

 gether, the Government would, in a great degree, bo 

 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 

 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 ha- 

 beas 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 ser- 

 vice to the insurgent cause. It needed no very keen 

 perception to discover this, part of the enemy s pro- 

 gramme, so soon as by open hostilities their machinery 

 was fairly put in motion. Yet thoroughly imbued 

 with a reverence for the guaranteed rights of individ- 

 uals, I was slow to adopt the strong measures which 

 by degrees I have been forced to regard as being with- 

 in the exceptions of the Constitution, and as indispen- 

 sable to the public safety. Nothing is better known to 

 history than that courts of justice are utterly incom- 

 petent to such cases. Civil courts are organized 

 chiefly for trials of individuals, or, at most, a few in- 

 dividuals 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 volunteer- 

 ing, 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 

 BO 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 resolu- 

 tion 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 

 pot be suspended unless when in case 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 ordi- 

 nary rules, would discharge. Habeas corpus does not 

 discharge men who are proved to be guilty of de- 

 fined 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 de- 

 fined crime, " when, in case of rebellion or invasion, 

 the public safety may require it." This is precise- 

 ly 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 re- 

 bellion do not proceed altogether upon the same basis. 

 The former is directed at the small percentage of or- 

 dinary 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 caso 

 arrests are made not so much for what has been done, 

 as for what probably would be done. The latter ia 

 VOL. in. 51 A 



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 or- 

 dinary crime. *The man who stands bv 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 ambiguous- 

 ly talks for his country with " buts" and " ifs" and 

 " ands." Of how little value the constitutional pro- 

 visions 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 exam- 

 ples. Gen. John C. Breckinridge, Gen. Robert E. Lee, 

 Gen. Joseph E. Johnston, Gen. John B. Magruder, 

 Gen. William B. Preston, Gen. Simon B. Buckner, and 

 Com. Franklin Buchanan, now occupying the very 

 highest places in the rebel war service, were all 

 within the power of the Government since the rebel- 

 lion began, and were nearly as well known to be trai- 

 tors then as now. Unquestionably, if we had seized 

 and held them, the insurgent cause would be much 

 weaker. But no one of them had 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 ar- 

 rests 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 rebel- 

 lion or insurrection does not actually exist. They in- 

 sist 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 mates no such distinction, I am un- 

 able to believe that there is any such constitutional 

 distinction. I concede that the class of arrests com- 

 plained 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 consti- 

 tutional wherever the public safety does require them ; 

 as well in places to which they may prevent the rebel- 

 lion extending, as in those where it may_ be already 

 prevailing; as well where they may restrain mischiev- 

 ous interference with the raising and supplying of 

 armies to suppress the rebellion, as where the rebel- 

 lion 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 .1 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 asser- 

 tion is the truth, and the whole truth ; if there was no 

 other reason for the arrest, then I concede that the ar- 

 rest 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 Unio_u ; 

 and his arrest was made because he was laboring, with 

 some effect, to prevent the raising of troops ; to en- 

 courage desertion from the army ; and to leave the re- 

 bellion 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 be- 

 cause 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 mil- 

 itary 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 

 reasonable satisfactory evidence. 1 understand the 

 meeting whose resolutions I am considering, to be in 



