WASHINGTON, June 26, 1863.
His Excellency the PRESIDENT OF THE UNITED STATES:
The undersigned, having been appointed a committee under the authority
of the resolutions of the State convention held at the city of Columbus, Ohio,
on the 11th instant, to communicate with you on the subject of the arrest and
banishment of Clement L. Vallandigham, most respectfully submit the following
as the resolutions of the convention bearing upon the subject of this
communication, and ask of Your Excellency their earnest consideration. And they
deem it proper to state that the convention was one in which all parts of the
State were represented, one of the most respectable as to numbers and character
and one of the most earnest and sincere in support of the Constitution and the
Union ever held in this State:
Resolved, That the will of the people is the foundation of all free government;
that to give effect to this free will, free thought, free speech, and a free
press are absolutely indispensable. Without free discussion there is no
certainty of sound judgment; without sound judgment there can be no wise
government.
2. That it is an inherent and constitutional right
of the people to discuss all measures of the Government, and to approve or
disapprove as to their best judgment seems right. That they have a like right
to propose and advocate that policy which in their judgment is best, and to
argue and vote against whatever policy seems to them to violate the
Constitution, to impair their liberties, or to be detrimental to their welfare.
3. That these and all other rights guaranteed to
them by their constitutions are their rights in time of war as well as in time
of peace, and of far more value and necessity in war than in peace, for in peace
liberty, security, and property are seldom endangered. In war they are ever in
peril.
4. That we now say to all whom it may concern, not
by way of a threat, but calmly and firmly, that we will not surrender these
rights nor submit to their forcible violation. We will obey the laws ourselves
and all others must obey them.
11. That Ohio will adhere to the Constitution and
the Union as the best — it may be the last — hope of popular freedom, and for
all wrongs which may have been committed or evils which may exist will seek
redress under the Constitution and within the Union by the peaceful but
powerful agency of the suffrages of a free people.
14. That we will earnestly support every
constitutional measure tending to preserve the union of the States. No men have
a greater interest in its preservation than we have; none desire it more; there
are none who will make greater sacrifices or will endure more than we will to
accomplish that end. We are as we have ever been the devoted friends of the
Constitution and the Union and we have no sympathy with the enemies of either.
15. That the arrest, imprisonment, pretended trial,
and actual banishment of Clement L. Vallandigham, a citizen of the State of
Ohio, not belonging to the land or naval forces of the United States nor to the
militia in actual service, by alleged military authority, for no other
pretended crime than that of uttering words of legitimate criticism upon the
conduct of the Administration in power and of appealing to the ballot box for a
change of policy — said arrest and military trial taking place where the courts
of law are open and unobstructed, and for no act done within the sphere of
active military operations in carrying on the war — we regard as a palpable
violation of the following provisions of the Constitution of the United States:
1. “Congress shall make no law abridging the
freedom of speech, or of the press, or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
2. “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue but upon probable
cause, supported by oath or affirmation, and particularly describing the place to
be searched and the persons or things to be seized.
3. “No person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or indictment of
a grand jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war or public danger.
4. “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed, which district
shall have been previously ascertained by law.”
And we furthermore denounce said arrest, trial, and
banishment as a direct insult offered to the sovereignty of the State of Ohio,
by whose organic law it is declared that no person shall be transported out of
the State for any offense committed within the same.
16. That Clement L. Vallandigham was at the time of
his arrest a prominent candidate for nomination by the Democratic party of Ohio
for the office of Governor of the State; that the Democratic party was fully
competent to decide whether he is a fit man for that nomination, and that the
attempt to deprive them of that right by his arrest and banishment was an
unmerited imputation upon their intelligence and loyalty, as well as a violation
of the Constitution.
17. That we respectfully, but most earnestly, call
upon the President of the United States to restore Clement L. Vallandigham to
his home in Ohio, and that a committee of one from each Congressional district
of the State, to be selected by the presiding officer of this convention, is
hereby appointed to present this application to the President.
The undersigned, in the discharge of the duty assigned them, do not
think it necessary to reiterate the facts connected with the arrest, trial, and
banishment of Mr. Vallandigham — they are well-known to the President and are
of public history — nor to enlarge upon the positions taken by the convention,
nor to recapitulate the constitutional provisions which it is believed have
been contravened; they have been stated at length and with clearness in the
resolutions which have been recited. The undersigned content themselves with
brief reference to the other suggestions pertinent to the subject.
They do not call upon Your Excellency as suppliants, praying the
revocation of the order banishing Mr. Vallandigham as a favor, but, by the
authority of a convention representing a majority of the citizens of the Slate
of Ohio, they respectfully ask it as a right due to an American citizen, in
whose personal injury the sovereignty and dignity of the people of Ohio as a
free State have been offended. And this duty they perform more cordially from
the consideration that at a time of great national emergency, pregnant with
danger to our Federal Union, it is all important that the friends of the
Constitution and the Union, however they may differ as to the mode of
administering the Government and the measures most likely to be successful in
the maintenance of the Constitution and the restoration of the Union, should
not be thrown into conflict with each other.
The arrest, unusual trial, and banishment of Mr. Vallandigham have
created widespread and alarming disaffection among the people of the State, not
only endangering the harmony of the friends of the Constitution and the Union
and tending to disturb the peace and tranquillity of the State, but also
impairing that confidence in the fidelity of your Administration to the great
landmarks of free government essential to a peaceful and successful enforcement
of the laws in Ohio.
You are reported to have used, in a public communication on this
subject, the following language:
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.
The undersigned assure Your Excellency from our own personal knowledge
of the feelings of the people of Ohio that the public safety will be far more
endangered by continuing Mr. Vallandigham in exile than by releasing him. It
may be true that persons differing from him in political views may be found in
Ohio and elsewhere who will express a different opinion. But they are certainly
mistaken. Mr. Vallandigham may differ with the President, and even with some of
his own political party, as to the true and most effectual means of maintaining
the Constitution and restoring the Union, but this difference of opinion does
not prove him to be unfaithful to his duties as an American citizen. If a man,
devotedly attached to the Constitution and the Union, conscientiously believes
that from the inherent nature of the Federal compact the war in the present
condition of things in this country cannot be used as a means of restoring the
Union, or that a war to subjugate a part of the States, or a war to
revolutionize the social system in a part of the States could not restore but
would inevitably result in the final destruction of both the Constitution and
the Union, is he not to be allowed the right of an American citizen to appeal
to the judgment of the people for a change of policy by the constitutional
remedy of the ballot box?
During the war with Mexico many of the political opponents of the
Administration then in power thought it their duty to oppose and denounce the
war and to urge before the people of the country that it was unjust and
prosecuted for unholy purposes. With equal reason it might have been said of
them that their discussions before the people were calculated to discourage
enlistments, “to prevent the raising of troops,” and to induce desertions from
the Army and to leave the Government without an adequate military force to
carry on the war.
If the freedom of speech and of the press are to be suspended in time
of war, then the essential element of popular government to effect a change of
policy in the constitutional mode is at an end. The freedom of speech and of
the press is indispensable and necessarily incident to the nature of popular
government itself. If any inconvenience or evils arise from its exercise they
are unavoidable. On this subject you are reported to have said further:
It is asserted, in substance, that Mr. Vallandigham
was by a military commander seized and tried “for no other reasons than words
addressed to a public meeting in criticism of the course of the Administration
and in condemnation of the military order of the general.” Now, if there be no
mistake about this, if there was no other reason for the arrest, then I concede
that the arrest was wrong; but the arrest, 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 facts, which I would be glad to correct on reasonable satisfactory evidence.
In answer to this, permit us to say, first, that neither the charge nor
the specifications in support of the charge on which Mr. Vallandigham was tried
impute to him the act of either laboring to prevent the raising of troops or to
encourage desertions from the Army; secondly, no evidence on the triad was
offered with a view to support any such charge. In what instance and by what
act did he either discourage enlistments or encourage desertions in the Army?
Who was the man who was discouraged from enlisting and who encouraged to desert
by any act of Mr. Vallandigham? If it be assumed that perchance some person
might have been discouraged from enlisting, or that some person might have been
encouraged to desert on account of hearing Mr. Vallandigham's views as to the
policy of the war as a means of restoring the Union, would that have laid the
foundation for his conviction and banishment? If so, upon the same grounds
every political opponent of the Mexican war might have been convicted and
banished from the country.
When gentlemen of high standing and extensive influence, including Your
Excellency, opposed in the discussions before the people the policy of the
Mexican war, were they “warring upon the military,” and did this “give the
military constitutional jurisdiction to lay hands upon” them? And, finally, the
charge in the specifications upon which Mr. Vallandigham was tried entitled him
to a trial before the civil tribunals, according to the express provision's of
the late acts of Congress, approved by yourself July 17, 1862, and March 3,
1863, which were manifestly designed to supersede all necessity or pretext for
arbitrary military arrests.
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. The Constitution
provides for no limitation upon or exceptions to the guarantees of personal
liberty, except as to the writ of habeas corpus. Has the President at the time of
invasion or insurrection the right to ingraft limitations or exception's upon
these constitutional guarantees whenever, in his judgment, the public safety
requires it?
True it is, the article of the Constitution which defines the various
powers delegated to Congress declares that “the privilege of the writ of habeas
corpus shall not be suspended unless when in cases of rebellion or invasion the
public safety requires it.” But this qualification or limitation upon this
restriction upon the powers of Congress has no reference to or connection with
the other constitutional guarantees of personal liberty. 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.
Although a man might not have a constitutional right to have an
immediate investigation made as to the legality of his arrest upon habeas
corpus, yet his “right to a speedy and public trial by an impartial jury of the
State and district wherein the crime shall have been committed” will not be
altered; neither will his right to the exemption from “cruel and unusual
punishment;” nor his right to be secure in his person, houses, papers, and
effects against unreasonable seizures and searches; nor his right not to be
deprived of life, liberty, or property without due process of law; nor his
right not to be held to answer for a capital or otherwise infamous offense
unless on presentment or indictment of a grand jury, be in anywise changed.
And certainly the restriction upon the power of Congress to suspend the
writ of habeas corpus in time of insurrection or invasion could not affect the
guarantee that the freedom of speech and of the press shall be abridged. It is
sometimes urged that the proceedings in the civil tribunals are too tardy and
ineffective for cases arising in times of insurrection or invasion. It is a
full reply to this to say that arrests by civil process may be equally as
expeditious and effective as arrests by military orders.
True, a summary trial and punishment are not allowed in the civil
courts, but if the offender be under arrest and imprisoned and not entitled to
a discharge on writ of habeas corpus before trial, what more can be required
for the purposes of the Government? The idea that all the constitutional
guarantees of personal liberty are suspended throughout the country at a time
of insurrection or invasion in any part of it places us upon a sea of
uncertainty, and subjects the life, liberty, and property of every citizen to
the mere will of a military commander or what he may say that he considers the
public safety requires. Does Your Excellency wish to have it understood that
you hold that the rights of every man throughout this vast country are subject
to be annulled whenever you may say that you consider the public safety
requires it, in time of invasion or insurrection?
You are further reported as having said that the constitutional
guarantees of personal liberty have—
No application to the present 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
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, &c.
The conclusion to be drawn from this position of Your Excellency is
that where a man is liable to “a criminal prosecution” or is charged with a
crime known to the laws of the land he is clothed with all the constitutional
guarantees for his safety and security from wrong and injustice, but that where
he is not liable to “a criminal prosecution” or charged with any crime known to
the laws if the President or any military commander shall say that he considers
that the public safety requires it this man may be put outside of the pale of
the constitutional guarantees and arrested without charge of crime, imprisoned
without knowing what for and any length of time, or be tried before a
court-martial and sentenced to any kind of punishment unknown to the laws of
the land which the President or the military commander may see proper to
impose. Did the Constitution intend to throw the shield of its securities
around the man liable to be charged with treason as defined by it and yet leave
the man not liable to any such charge unprotected by the safeguards of personal
liberty and personal security?
Can a man not in the military or naval service nor within the field of
the operations of the army be arrested and imprisoned without any law of the
land to authorize it? Can a man thus in civil life be punished without any law
defining the offense and describing the punishment? If the President or a
court-martial may prescribe one kind of punishment unauthorized by law, why not
any other kind? Banishment is an unusual punishment and unknown to our laws. If
the President has the right to prescribe the punishment of banishment, why not
that of death and confiscation of property? If the President has the right to
change the punishment prescribed by the court-martial from imprisonment to
banishment, why not from imprisonment to torture upon the rack or execution
upon the gibbet?
If an indefinable kind of constructive treason is to be introduced and
ingrafted upon the Constitution unknown to the laws of the land and subject to
the will of the President whenever an insurrection or an invasion shall occur
in any part of this vast country, what safety or security will be left for the
liberties of the people?
The constructive treasons that gave the friends of freedom so many
years of toil and trouble in England were inconsiderable compared to this. The
precedents which you make will become a part of the Constitution for your
successors if sanctioned and acquiesced in by the people now.
The people of Ohio are willing to co operate zealously with you in
every effort warranted by the Constitution to restore the union of the States
but they cannot consent to abandon those fundamental principles of civil
liberty which are essential to their existence as a free people.
In their name we ask that by a revocation of the order of his
banishment Mr. Vallandigham may be restored to the enjoyment of those rights of
which they believe he has been unconstitutionally deprived.
We have the honor
to be respectfully, yours, &c.,
M. BIRCHARD, Chairman, 19th Dist.
DAVID A. HOUK, Secretary, 3d Dist.
GEO. BLISS, 14th Dist.
T. W. BARTLEY, 8th Dist.
W. J. GORDON, 18th Dist.
JOHN O'NEILL, 13th Dist.
C. A. WHITE, 6th Dist.
W. E. FINCK, 12th Dist.
ALEXANDER LONG, 2d Dist.
J. W. WHITE, 16th Dist.
JAS. R. MORRIS, 15th Dist.
GEO. L. CONVERSE, 7th Dist.
WARREN P. NOBLE, 9th Dist.
GEO. H. PENDLETON, 1st Dist.
W. A. HUTCHINS, 11th Dist.
ABNER L. BACKUS, 10th Dist.
J. F. McKINNEY, 4th Dist.
F. C. LE BLOND, 5th Dist.
LOUIS SHAEFER, 17th Dist.
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. 48-53
