The Ohio Democratic Committee in the Case of Clement Vallandigham to Abraham Lincoln, June 26, 1863

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

Abraham Lincoln to Matthew Birchard et al, June 29, 1863

WASHINGTON, June 29, 1863.

Messrs. M. BIRCHARD [and others]:^*

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, N.Y., 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 desire 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 mere 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 of expunging that clause, letter and spirit, I really think the constitutional argument would be with you.

My general view of this question was stated in the Albany response, and hence I do not state it now. I only add that, it 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 suspended 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; I think the man whom for the time the people have under the Constitution made the Commander-in. Chief of the 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 combat a gigantic 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 injunction 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 trials 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 for 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 because, as you claim, he has not damaged the military service by discouraging enlistments, encouraging desertions, or otherwise, and that if he had he should be 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 desertion 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 enrollment 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 course 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 that 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 one 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 counseled 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 are inclined to desert and to escape the draft to believe it is your purpose to protect them and to hope you will become strong enough to do so.

After a short personal intercourse with you, gentlemen of the committee, I cannot 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. 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 hereby committed to the following propositions and to nothing else:

1. That there is now a 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 a constitutional means for suppressing the rebellion.

2. That no one of you will do anything 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 the 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, and 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 will not put himself practically in antagonism with 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.

_______________

* See signatures to the letter of the 26th to the President, p. 48.  Those names were all included in this address.

^† For Lincoln to Corning and the others see p. 4

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. 56-9

Diary of Gideon Welles, September 22, 1862

A special Cabinet-meeting. The subject was the Proclamation for emancipating the slaves after a certain date, in States that shall then be in rebellion. For several weeks the subject has been suspended, but the President says never lost sight of. When it was submitted, and now in taking up the Proclamation, the President stated that the question was finally decided, the act and the consequences were his, but that he felt it due to us to make us acquainted with the fact and to invite criticism on the paper which he had prepared. There were, he had found, not unexpectedly, some differences in the Cabinet, but he had, after ascertaining in his own way the views of each and all, individually and collectively, formed his own conclusions and made his own decisions. In the course of the discussion on this paper, which was long, earnest, and, on the general principle involved, harmonious, he remarked that he had made a vow, a covenant, that if God gave us the victory in the approaching battle, he would consider it an indication of Divine will, and that it was his duty to move forward in the cause of emancipation. It might be thought strange, he said, that he had in this way submitted the disposal of matters when the way was not clear to his mind what he should do. God had decided this question in favor of the slaves. He was satisfied it was right, was confirmed and strengthened in his action by the vow and the results. His mind was fixed, his decision made, but he wished his paper announcing his course as correct in terms as it could be made without any change in his determination. He read the document. One or two unimportant amendments suggested by Seward were approved. It was then handed to the Secretary of State to publish to-morrow. After this, Blair remarked that he considered it proper to say he did not concur in the expediency of the measure at this time, though he approved of the principle, and should therefore wish to file his objections. He stated at some length his views, which were substantially that we ought not to put in greater jeopardy the patriotic element in the Border States, that the results of this Proclamation would be to carry over those States en masse to the Secessionists as soon as it was read, and that there was also a class of partisans in the Free States endeavoring to revive old parties, who would have a club put into their hands of which they would avail themselves to beat the Administration.

The President said he had considered the danger to be apprehended from the first objection, which was undoubtedly serious, but the objection was certainly as great not to act; as regarded the last, it had not much weight with him.

The question of power, authority, in the Government to set free the slaves was not much discussed at this meeting, but had been canvassed by the President in private conversation with the members individually. Some thought legislation advisable before the step was taken, but Congress was clothed with no authority on this subject, nor is the Executive, except under the war power, — military necessity, martial law, when there can be no legislation. This was the view which I took when the President first presented the subject to Seward and myself last summer as we were returning from the funeral of Stanton's child, — a ride of two or three miles from beyond Georgetown. Seward was at that time not at all communicative, and, I think, not willing to advise, though he did not dissent from, the movement. It is momentous both in its immediate and remote results, and an exercise of extraordinary power which cannot be justified on mere humanitarian principles, and would never have been attempted but to preserve the national existence. The slaves must be with us or against us in the War. Let us have them. These were my convictions and this the drift of the discussion.

The effect which the Proclamation will have on the public mind is a matter of some uncertainty. In some respects it would, I think, have been better to have issued it when formerly first considered.

There is an impression that Seward has opposed, and is opposed to, the measure. I have not been without that impression myself, chiefly from his hesitation to commit himself, and perhaps because action was suspended on his suggestion. But in the final discussion he has as cordially supported the measure as Chase.

For myself the subject has, from its magnitude and its consequences, oppressed me, aside from the ethical features of the question. It is a step in the progress of this war which will extend into the distant future. A favorable termination of this terrible conflict seems more remote with every movement, and unless the Rebels hasten to avail themselves of the alternative presented, of which I see little probability, the war can scarcely be other than one of emancipation to the slave, or subjugation, or submission to their Rebel owners. There is in the Free States a very general impression that this measure will insure a speedy peace. I cannot say that I so view it. No one in those States dare advocate peace as a means of prolonging slavery, even if it is his honest opinion, and the pecuniary, industrial, and social sacrifice impending will intensify the struggle before us. While, however, these dark clouds are above and around us, I cannot see how the subject can be avoided. Perhaps it is not desirable it should be. It is, however, an arbitrary and despotic measure in the cause of freedom.

SOURCE: Gideon Welles, Diary of Gideon Welles, Secretary of the Navy Under Lincoln and Johnson, Vol. 1: 1861 – March 30, 1864, p. 142-5

Have the Rebel States Committed Suicide?

Pending the bill for the abolition of slavery in the District of Columbia, Mr. Thomas of Massachusetts, made an able speech upon the very difficult question of what shall be done with the seceded States when the rebellion is crushed. This is a grave question which should be decided in the light of justice and law and according to the usages of civilized society, light from all quarters should be sought. Mr. Thomas’ is the concervative [sic] view. We cannot agree with him in all respects, but are entirely willing he should be heard:

Mr. Thomas, of Massachusetts, made a speech in the course of which he said: – The solution of the difficult problems of right and duty involved in the present state of affairs must be found in the careful study of the principles of the constitution and the just and logical application of them to this new condition of things. It is by no narrow and rigid construction of the words of the constitution that the powers and duties of Congress on these subjects are to be ascertained. Every provision must be fairly construed in view of the great objects the constitution was ordained to effect, and with the full recognition of the powers resulting from clear implication as well as express grant. In my humble judgment there has been and is now but one issue before the country, and this is whether the constitution of the United States shall be the supreme law of the land. That constitution was formed by the people of the United States. It acts not upon the States, nor though the States upon us as citizens of the several States, but directly upon us as citizens of the United States, claiming on the one hand our allegiance, and giving to us on the other its protection. – The doctrines as to the supremacy of the national government within its sphere, and of the reserved rights of the States, are elementary. – Between them there is no necessary conflict. Each is the complement of the other; both vital parts of that political system under whose admirable distribution and adjustment of powers the people of the United States have had for seventy years incomparably the best and most beneficent government the world has ever known; a government now imperiled, not by reason of any inherent defect or any want of wisdom or foresight in its founders; not because we have outgrown its provisions; not because it is behind the age, but because it has fallen upon an age not worthy of it, which has failed to appreciate the spirit of wisdom, prudence and moderation in which it was founded. Such being the relation of the government of the United States to its citizens and to the States, the first question that arises is, how far this relation is affected by the fact that several of the States have assumed, by ordinances of secession (so-called), to separate themselves from the Union. There is not a clause or word in the constitution which looks to separation. It has careful provisions for its amendment, none for its destruction; capacity for expansion, none for contraction; a door for new States to come in, none for old or new ones to go out. An ordinance of secession has no legal meaning or force, is wholly inoperative and void. The constitution and the laws and treaties made under it, the people have declared “shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.” The act of secession, therefore, cannot change in the least degree the legal relation of the State to the Union. No provision of the constitution of the United States, no law or treaty of the United States can be abrogated or impaired thereby. No citizen of the United States residing in the Seceded States is, by such ordinance of secession, deprived of the just protection of or exempted from any of his duties to the United States. In contemplation of law the reciprocal duties of protection and allegiance remain unaffected. After the act of secession, the province and duty of the government of the United States are the same, according to the full measures of its ability, as before to enforce in every part of the Union, and over every inch of its territory, the constitution and laws of the United States.

It is the necessary result of these principles that no State can abdicate or forfeit the rights of its citizens to the protection of the constitution of the United States or the privileges and blessings of the Union which that constitution secures and makes perpetual. The primary, paramount allegiance of every citizen of the United States is to the nation, and the State authorities can no more impair that allegiance than a county court or a village constable. It is also the plain and necessary conclusion, from the principles before stated, that a State cannot commit treason. Under the constitution of the United States persons only can commit treason. The persons who for the time being hold the offices under a State government may individually commit treason, by the acts of the State officers, transcending their authority and in conflict with the constitution of the United States, involve in their guilt no man who has not himself levied war against the United States or adhered to their enemies, giving them aid and comfort. As a State cannot commit the crime of treason, it cannot concur a forfeiture of its powers and functions as the penalty of treason. The punishment provided for traitors is the result of judicial trial, conviction and judgment. How to indict a State, the constitution of the court, the mode of trial, the form of judgment, and process of execution yet exists in gremio legis. The majority of the voters of a State cannot deprive the minority of the right secured to them by the constitution of the United States. Some of these rights may be kept in abeyance. Their exercise may be overborne by a [superior] physical force. – They may sleep, but it is not the sleep of death. They are integral parts of the constitution, and can only perish when the constitution perishes. There is nothing in the doctrines of nullification or cession more disloyal to the constitution, more fatal to the Union, than this doctrine of State suicide. It is the gospel of anarchy, the philosophy of dissolution. Nor by carrying out this doctrine of the destruction of forfeiture of the State organization would anything be gained for the cause of freedom. Slavery exists by the local municipal law, and would not be abolished unless you go one step further and hold that with the loss of the State organization the institutions laws and civil relations of the States perish. Now, in case of conquest, even though the people of the conquered territory change their allegiance, their relations to each other and their rights of property remain undisturbed. The modern usage of nations, which has become law, would be violated if private property should be generally confiscated and private rights nulled. (U. S. vs. Porcheman, 7 Peters, 51; 3 Phillemore, p. 743) When States were reduced to Territories the national government could not abolish slavery therein, except under the right of eminent domain, and by giving just compensation. The rebel States are still members of the Union, foregoing for a time its privileges, but subject to its duties, bound to it by a cord which the sword of successful revolution can alone sever.

What then, it may be asked, is the legal character of the great insurrection? The answer is it is a rebellion of citizens of the United States against the government of the United States; an organized effort to subvert and overthrow its authority, and to establish another government in its stead. He only is the enemy of the United States who is committing treason by levying war against the United States or [giving aid and] comfort to those who do. The loyal faithful subject of the United States, wherever on the soil of his country he may have his home, is not the enemy of his country. No subtlety or logic, no ingenuity of legal construction, no misapplication of the laws of international war to this contest can change the nature of things, can convert loyalty into treason, or devotion into hostility. If there be to-day in Tennessee, or Georgia, or South Carolina, even a loyal subject of the United States “faithful among the faithless found,” the Government is not at war with him. While using the powers and appliances of war for the purpose of subduing the rebellion we are by no means acting without the pale of the Constitution. We are seeking domestic tranquility by the sword the Constitution has placed in our hands. In the path of war, as of peace, the Constitution is our guide and our light – the cloud by day, the pillar of fire by night. The recognition of the “belligerent rights” of the rebels by foreign Powers can, as between the sovereign and his subjects have no other or further effect. Such recognition (if known to the law of nations) proceeds upon the ground that the revolution is not accomplished, and that the connection is not dissolved. Had this been done, the recognition would have been their separate national existence. In my humble judgment the “seceded States” so called, and the people of those states are today integral parts of the Union, over whom, when the conflict of arms ceases, the Constitution of the United States, and the laws made under it, will resume their peaceful sway. Traitors may perish, some institutions may perish, the nation will remain and the States will remain essential parts of the body politic. “The body is one, and hath many members, and all the member of that body being many, are one body.” With this brief and imperfect development of the principles involved in the great controversy, I proceed to a more direct consideration of the subjects of confiscation and emancipation.

No purpose, however humane, beneficial or attractive can divert our steps from the plain, straight path of sworn duty. What is writ is writ. In seeking to change it by force of arms we become the rebels we are striving to subdue. The people do not desire a bitter and remorseless struggle over the dead body of the constitution. We may raise armies and navies and pour out like water the treasure and life blood of people, but we can neither think nor act wisely, live well or do well for the republic, unless we keep clearly and always in view the end of all our labors and sacrifices, the Union of our fathers and the constitution, which is its bond. No thoughtful man can believe there is a possibility of reconstructing the Union on any other basis, or that it is within the province of the Congress in any other by the peaceful way of amendment to made [sic] the effort. The propositions for confiscation include the entire property of the rebels, real and personal, for life and in fee. The mind instinctively shrinks from a proposition like this. It relucts [sic] to include in one “fell swoop” a whole people. It asks anxiously if no consideration is to be had for different degrees of guilt; if the same measure is to be meted to those who organized the rebellion and those who have been forced into it; if no consideration is to be given to the fact that allegiance and protection are reciprocal duties and that for the past ten months the national government has found itself incapable of giving protection to its loyal subjects in the “seceding States,” neither defending them nor giving them arms to defend themselves, and that, deprived of our protection and incapable of resistance, they have yielded only to superior force; if a wise government is to forget the nature of man and the influences of birth, of soil, of home, of society, and of State, by which his opinions are insensibly moulded, and that this pestilent heresy of the right of secession, fatal as it is now seen to be, not only to the existence of good government but of social order itself has been a cardinal article in the faith of a large portion of the people in the Southern States, and that they have been induced by the arts and sophistries, and falsehoods of unprincipled leaders to believe that their future safety and well being required the exercise of the right? Those leaders should atone for the crime by the just penalty of the law. “But you cannot,” says Burk, “indict a whole people; you cannot apply to them the ordinary rules of criminal jurisprudence.” To state the proposition to confiscate the property of eleven States is to confute it; is to shock our common sense and sense of justice; is to forget not only the ties of history and of kindred, but those of a common humanity; is to excite the indignation of the civilized world, and invoke the interposition of all Christian governments. The acts of general confiscation proposed would defeat the great end the government has in view; the restoration of order, union and obedience to law. Apart from the injustice and impolicy of these acts of sweeping confiscation, I have not been able to find in the constitution the requisite authority to pass them.

After some further remarks, at length, on confiscation, he proceeded to inquire how far, if at all, the powers of Congress are enlarged by the existence of this rebellion, and the use of the appliances of war to subdue it. The exceptions growing out of the military exigencies and measured and governed by them, cannot be foreseen and provided for by legislation, but must be left, where the law of nations leaves them, with the military commander. It is in the exercise of irresponsible power that the nicest sense of justice and the greatest caution and forbearance are demanded. In suppressing a rebellion so atrocious, marked by such fury and hate, against a government felt only in its blessings, forbearance sometimes seems to us weakness, and vengeance the noblest of virtues. But, in our calmer moments, we hear the Divine voice, “Vengeance is mine; I will repay.” I conclude what I have to say on this branch of the subject with the remark that in substance and effect, the bills before the House seek the permanent forfeiture and confiscation of property, real and personal, without the trial of the offender. I am unable to see how under the constitution, that result can be reached. I proceed to the question of the deepest interest involved in this discussion – the emancipation of slaves in the seceding States. This plainly is not a question of present military necessity, but one affecting the permanent structure of the government, and involving material changes in the constitution. This can be done in one of two ways – in the method the constitution points out, or by successful revolution on the part of the free States and the entire subjugation of the slave States. No man can foresee to-day what policy a severe and protracted struggle may render necessary. It is sufficient to say that into such a war of conquest and extermination the people of the United States have no present disposition to enter. They have too thorough a conviction of the capacity of the Government to subdue the rebellion by the means the constitution sanctions to be desirous of looking beyond its pale. But the question arises, how far the existence of the rebellion confers upon the Congress any new power over the relation of master and slave. Strictly speaking no new power is conferred upon any department of the Government by war or rebellion; but it may have powers to be used in those exigencies which are dormant in time of peace. Though the power may exist, there is with prudent and humane men, no desire to use it. Nothing but the direst extremity would excuse the use of a power fraught with so great perils to both races; and the glorious triumphs of our arms, envincing our capacity to subdue the rebellion without departure from the usages of civilized warfare. Nor would an act of the national government liberating the slaves within a State, having the consent of the State, and providing the compensation for the masters, militate with the rule. Conventio vincit legem. The consent of the State would relieve the difficulty. In my judgment, it would be impracticable for the legislature, even if it had the power, to anticipate by any general statute or the exigencies or prescribe the rules for the exercise of this power. The Legislature and the people will be content to leave the matter to the sound discretion and sound patriotism of the magistrate selected to execute the laws. – To avoid misconstruction, I desire to say that the power of Congress over slavery in this District is absolute, and that no limitation exists in the letter or spirit of the constitution or the acts of cession. All that is requisite for abolishing slavery here, is just compensation to the master. Whoever else may falter, I must stand by the constitution I have sworn to support. I am not wise enough to build a better. I am not rash enough to experiment upon a nation’s life. There is to [us], no hope of “one country” but in this system of many States and one nation, working in their respective spheres as if the Divine hand had moulded and set them in motion. To this system the integrity of the States is as essential as that of the central power. Their life is one life. A consolidated government for this vast country would be essentially a despotic government, democratic in name, but kept buoyant by corruption and efficient by the sword.

– Published in The Burlington Weekly Hawk-Eye, Burlington, Iowa, Saturday, April 26, 1862, p. 1