EXECUTIVE MANSION, Washington, June 12,
1863.
Hon. ERASTUS CORNING, and
others:
GENTLEMEN: Your letter of May 19,* inclosing 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 the 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 was no
apprehension that more injurious consequences than any merely personal to
myself might follow the censures systematically cast upon me for doing what in
my view of duty I could not forbear. The resolutions promise to support me in
every constitutional and lawful measure to suppress the rebellion, and I have
not knowingly employed nor shall I 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 trials of 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, because the arrests complained of were not made for treason — that
is, not for the treason defined in the Constitution, and upon the conviction of
which the punishment is death — nor yet were they made to hold persons to
answer for any capital or otherwise infamous crimes, nor were the proceedings
following in any constitutional or legal sense “criminal prosecutions.” The
arrests were made on totally different grounds and the proceedings following
accorded with the grounds of the arrests. Let us consider the real case with
which we are dealing and apply it to 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 U.S. forts, and had fired upon the
U.S. flag, all before I was inaugurated, and of course before I had done any
official act whatever. The rebellion thus begun soon ran into the present civil
war, and in certain respects it began on very unequal terms between the
parties. The insurgents had been preparing for it for 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 all together 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 communities of the people. From this material,
under cover of “liberty of speech, liberty of the press and habeas corpus, they
hoped to keep on foot amongst us a most efficient corps of spies, informers,
suppliers, and aiders and abettors of their cause in a thousand ways. They knew
that in times such as they were inaugurating by the Constitution itself the
habeas corpus might be suspended, but they also knew that they had friends who
would make a question as to who was to suspend it, meanwhile their spies and
others might remain at large to help on their cause. Or if as has happened the
Executive should suspend the writ without ruinous waste of time instances of
arresting innocent persons might occur, as are always likely to occur in such
cases, and then a clamor could be raised in regard to this which might be at
least of some service to the insurgent cause.
It needed no very keen perception to discover this part of the enemy's
programme so soon as by open hostilities their machinery Was fairly put in
motion. Yet thoroughly imbued with a reverence for the guaranteed rights of
individuals I was slow to adopt the strong measures which by degrees I have
been forced to regard as being within the exceptions of the Constitution and as
indispensable to the public safety. Nothing is better known to history than
that courts of justice are utterly incompetent to such cases. Civil courts are
organized chiefly for the 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 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 frequently has at
least one member more ready to hang the panel than to hang the traitor. And yet
again he who dissuades one man from volunteering or induces one soldier to
desert weakens the Union cause as much as he who kills a Union soldier in
battle. Yet this dissuasion or inducement may be so conducted as to be no
defined crime of which any civil court would take cognizance.
Ours is a case of rebellion — so-called by the resolutions before me;
in fact a clear, flagrant, and gigantic case of rebellion; and the provision of
the Constitution that “the privilege of the writ of habeas corpus shall not be
suspended unless when in cases of rebellion or invasion the public safety may
require it” is the provision which specially applies to our present case. This
provision plainly attests the understanding of those who made the Constitution
that ordinary courts of justice are inadequate to “cases of rebellion” — attests
their purpose that in such cases men may be held in custody whom the courts
acting under 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 how 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 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 indicates 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 requires them, as well in places to
which they may prevent the rebellion extending as in those where it may be
already prevailing; as well where they may restrain mischievous interference
with the raising and supplying of armies to suppress the rebellion as where the
rebellion may actually be; as well where they may restrain the enticing men out
of the army as where they would prevent mutiny in the army; equally
constitutional at all places where they will conduce to the public safety as
against the dangers of rebellion or invasion.
Take the peculiar 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
concede that the arrest was wrong. But the arrest as I understand was made for
a very different reason. Mr. Vallandigham avows his hostility to the war on the
part of the Union, and his arrest was made because he was laboring with some
effect to prevent the raising of troops, to encourage desertions from the army,
and to leave the rebellion without an adequate military force to suppress it.
He was not arrested because he was damaging the political prospects of the
Administration or the personal interests of the commanding general, but because
he was damaging the army upon the existence and vigor of which the life of the
nation depends. He was warring upon the military and this gave the military
constitutional jurisdiction to lay hands upon him. If Mr. Vallandigham was not
damaging the military power of the country then his arrest was made on mistake
of fact which I would be glad to correct on reasonably satisfactory evidence.
I understand the meeting whose resolutions I am considering to be in
favor of suppressing the rebellion by military force — by armies. Long
experience has shown that armies cannot be maintained unless desertion shall be
punished by the severe penalty of death. The case requires and the law and the
Constitution sanction this punishment. Must I shoot a simple-minded soldier boy
who deserts while I must not touch a hair of a wily agitator who 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 to the soldier boy that he is fighting in a bad
cause, for the 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 public safety does not require
them; in other words, that the Constitution is not in its application in all
respects the same in cases of rebellion or invasion involving the public
safety, as it is in times of profound peace and public security. The
Constitution itself makes the distinction, and I can no more be persuaded that
the Government can constitutionally take no strong measures in time of
rebellion because it can be shown that the same could not be lawfully taken in
time of peace than I can be persuaded that a particular drug is not a good
medicine for a sick man because it can be shown to not be good food for a well
one. Nor am I able to appreciate the danger apprehended by the meeting that the
American people will by means of military arrests during the rebellion lose the
right of public discussion, the liberty of speech and the press, the law of
evidence, trial by jury, and habeas corpus throughout the indefinite peaceful
future which I trust lies before them any more than I am able to believe that a
man could contract so strong an appetite for emetics during temporary illness
as to persist in feeding upon them during the remainder of his healthful life.
In giving the resolutions that earnest consideration which you request
of me I cannot overlook the fact that the meeting speaks as “Democrats.” Nor
can I with fall 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 views 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 these Democrats who are
nobly exposing their lives and shedding their blood on the battle-field I have
learned that many approve the course taken with Mr. Vallandigham, while I have
not heard of a single one condemning it. I cannot assert that there are none
such.
And the name of President Jackson recalls an instance of pertinent
history. After the battle of New Orleans and while the fact that the treaty of
peace had been concluded was well known in the city, but before official
knowledge of it had arrived, General Jackson still maintained martial or
military law. Now that it could be said the war was over the clamor against
martial law which had existed from the very first grew more furious. Among
other things a Mr. Louaillier published a denunciatory newspaper article.
General Jackson arrested him. A lawyer by the name of Morel procured the U.S.
judge (Hall) to order a writ of habeas corpus to relieve Mr. Louaillier.
General Jackson arrested both the lawyer and the judge. A Mr. Hollander
ventured to say of some part of the matter that “it was a dirty trick.” General
Jackson arrested him. When the officer undertook to serve the writ of habeas
corpus General Jackson took it from him and sent him away with a copy. Holding
the judge in custody a few days the general sent him beyond the limits of his
encampment and set him at liberty with an order to remain till the ratification
of peace should be regularly announced or until the British should have left
the southern coast. A day or two more elapsed, the ratification of the treaty
of peace was regularly announced, and the judge and the 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 prepared to show who the journals would
show 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 whatever 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 practice a general directory and revisory power in the matter.
One of the resolutions expressed 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 as 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.
_______________
* See Vol. V, this series, p. 654.
SOURCE: The War of the Rebellion: A Compilation of
the Official Records of the Union and Confederate Armies, Series II, Volume
6 (Serial No. 119), p. 4-10
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