New York Democratic Committee to Abraham Lincoln, May 19, 1863

ALBANY, N. Y., May 19, 1863.

 To His Excellency the PRESIDENT OF THE UNITED STATES:

The undersigned, officers of a public meeting held at the city of Albany on the 16th day of May instant, herewith transmit to Your Excellency a copy of the resolutions adopted at the said meeting and respectfully request your earnest consideration of them. They deem it proper on their personal responsibility to state that the meeting was one of the most respectable as to numbers and character and one of the most earnest in the support of the Union ever held in this city.

Yours, with great regard,

ERASTUS CORNING, President.

ELI PERRY, Vice. President.

PETER GANSEVOORT, Vice-President.

PETER MONTEITH, Vice. President.

SAMUEL W. GIBBS, Vice. President.

JOHN NIBLACK, Vice-President.

H. W. McCLELLAN, Vice-President.

LEMUEL W. RODGERS, Vice-President.

WILLIAM SEYMOUR, Vice-President.

JEREMIAH OSBORN, Vice. President.

WM. S. PADOCK, Vice-President.

J. B. SANDERS, Vice-President.

EDWARD MULCAHY, Vice-President.

D. V. N. RADCLIFFE, Vice-President.

WILLIAM A. RICE, Secretary.

EDWARD NEWCOMB, Secretary.

R. W. PECKHAM,  JR., Secretary.

M. A. NOLAN, Secretary.

JOHN R. NESSEL, Secretary.

C. W. WEEKS, Secretary.

[Inclosure.]

SOURCE: The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, Series II, Volume 5 (Serial No. 118), p. 654

Resolutions of the New York Democratic Committee, May 16, 1863

Resolved, That the Democrats of New York point to their uniform course of action during the two years of civil war through which we have passed, to the alacrity which they have evinced in filling the ranks of the army, to their contributions and sacrifices, as the evidence of their patriotism and devotion to the cause of our imperiled country. Never in the history of civil wars has a Government been sustained with such ample resources of means and men as the people have voluntarily placed in the hands of this Administration.

Resolved, That as Democrats we are determined to maintain this patriotic attitude, and despite of adverse and disheartening circumstances to devote all our energies to sustain the cause of the Union; to secure peace through victory and to bring back the restoration of all the States under the safeguard of the Constitution.

Resolved, That while we will not consent to be misapprehended upon these points we are determined not to be misunderstood in regard to others not less essential. We demand that the Administration shall be true to the Constitution; shall recognize and maintain the rights of the States and the liberties of the citizen; shall everywhere outside of the lines of necessary military occupation and the scenes of insurrection exert all its powers to maintain the supremacy of the civil over the military law.

Resolved, That in view of these principles we denounce the recent assumption of a military commander to seize and try a citizen of Ohio, Clement L. Vallandigham, 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 that general.

Resolved, That this assumption of power by a military tribunal if successfully asserted not only abrogates the right of the people to assemble and discuss the affairs of government, the liberty of speech and of the press, the right of trial by jury, the law of evidence and the privilege of habeas corpus, but it strikes a fatal blow at the supremacy of the law and the authority of the State and Federal Constitutions.

Resolved, That the Constitution of the United States — the supreme law of the land — has defined the crime of treason against the United States to consist “only in levying war against them or adhering to their enemies, giving them aid and comfort,” and has provided that “no person shall be convicted of treason unless on the testimony of witnesses to the same overt act or on confession in open court.” And it further provides that “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 and naval forces or in the militia when in actual service in time of war or public danger;” and further that “in all criminal prosecutions the accused shall enjoy the right of a speedy and public trial by an impartial jury of the State and district wherein the crime was committed.”

Resolved, That these safeguards of the rights of the citizen against the pretensions of the arbitrary power were intended more especially for his protection in times of civil commotion. 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. They have stood the test of seventy-six years of trial under our republican system under circumstances that show that while they constitute the foundation of all free government they are the elements of the enduring stability of the Republic.

Resolved, That in adopting the language of Daniel Webster we declare “it is the ancient and undoubted prerogative of this people to canvass public measures and the merits of public men.” It is a “homebred right,” a fireside privilege. It had been enjoyed in every house, cottage and cabin in the nation. It is as undoubted as the right of breathing the air or walking on the earth. Belonging to private life as a right, it belongs to public life as a duty, and it is the last duty which those whose representatives we are shall find us to abandon. Aiming at all times to be courteous and temperate in its use except when the right itself is questioned we shall place ourselves on the extreme boundary of our right and bid defiance to any arm that would move us from our ground. “This high constitutional privilege we shall defend and exercise in all places — in time of peace, in time of war, and at all times. Living, we shall assert it; and should we leave no other inheritance to our children by the blessing of God we will leave the inheritance of free principles and the example of a manly, independent and constitutional defense of them.”

Resolved, That in the election of Governor Seymour the people of this State by an emphatic majority declare their condemnation of the system of arbitrary arrests and their determination to stand by the Constitution. That the revival of this lawless system can have but one result: to divide and distract the North and destroy its confidence in the purposes of the Administration. That we deprecate it as an element of confusion at home, of weakness to our armies in the field and as calculated to lower the estimate of American character and magnify the apparent peril of our cause abroad. And that regarding the blow struck at a citizen of Ohio as aimed at the rights of every citizen of the North we denounce it as against the spirit of our laws and Constitution and most earnestly call upon the President of the United States to reverse the action of the military tribunal which has passed a “cruel and unusual punishment” upon the party arrested, prohibited in terms by the Constitution, and to restore him the liberty of which he has been deprived.

Resolved, That the president, vice-president and secretary of this meeting be requested to transmit a copy of these resolutions to His Excellency the President of the United States with the assurance of this meeting of their hearty and earnest desire to support the Government in every constitutional and lawful measure to suppress the existing rebellion.

SOURCE: The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, Series II, Volume 5 (Serial No. 118), p. 654-6

Abraham Lincoln to Erastus Corning and Others, June 12, 1863

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

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

Edwin M. Stanton to the American Freedmen's Inquiry Commission, March 16 1863

WAR DEPARTMENT,

Washington, March 16, 1863.

ROBERT DALE OWEN,

JAMES MCKAYE,

SAMUEL G. HOWE,

Commissioners:

GENTLEMEN: The order, of which the following is a copy, sets forth in general terms the functions and duties with which you are charged by this Department:

Ordered, That Robert Dale Owen, of Indiana; Col. James McKaye, of New York, and Samuel G. Howe, of Boston, Mass., be, and they are hereby appointed commissioners to investigate the condition of the colored population emancipated by acts of Congress and the President's proclamation of January 1, 1863, and to report what measures will best contribute to their protection and improvement, so that they may defend and support themselves; and also, how they can be most usefully employed in the service of the Government for the suppression of the rebellion.

The great and constantly increasing colored population thrown upon the care of this Department in the progress of the war, in the absence of any legislative provision for their protection and disposal, renders it highly proper that it should have not [only] the most authentic and accurate information as to their present condition and as to the experiences of other communities in like crises, but that such practical measures for placing them in a state of self-support and self-defense, with the least possible disturbance to the great industrial interest of the country and of rendering their services efficient in the present war, should be carefully and maturely considered and reported.

With these purposes in view, you will repair to such places as you may deem necessary, in order to obtain on the spot such authentic information as will enable you thoroughly to understand the matters hereby submitted to your investigation. Every aid and facility from Government officials in such places will be scoured to you, at your request, by letters addressed to them from the proper Department.

You will be allowed a secretary, and, if you should find it necessary, a corresponding secretary and messenger, and such further aid, stenographic or other, as you may deem essential to carry out the objects of the commission.

You are authorized to procure for the use of the commission such official documents, publications, and other writings (ultimately to be placed in the library of the War Department) as may be necessary in the course of your investigations and in making out your report.

Your compensation will be a per diem of $8, together with quarters, fuel, and subsistence at the rates allowed to a colonel of cavalry; and you will be allowed actual traveling and office expenses on vouchers specifying such expenses, duly certified by the commission.

While from the nature of the duties assigned to you a precise limit cannot be affixed for their termination, and while it is very desirable that they should be prosecuted with all proper assiduity and completed at as early a day as is consistent with their due performance, you are expected to continue your labors until you shall be able fully to complete the investigations and researches herewith committed to your charge, and report the same to the Department.

You may make to me from time to time, as you see fit, preliminary reports during your progress, and your final report will be accompanied by such official or authentic documents as may best substantiate the information and the recommendations it shall contain.

EDWIN M. STANTON,

Secretary of War.

SOURCE: The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, Series III, Volume 3 (Serial No. 124), p. 73-4