Replies

The issue is now clear. What Lincoln and his administration did was unlawful.

Ex post facto.

Lincoln was taken to task at the time by a meeting organized to protest Lincoln's suspension of the Writ. He responded in June, 1863:

"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 on 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 can not 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, can not 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 provision 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, 2 General William B. Preston, General Simon B. Buckner, and Comodore Franklin Buchanan,3 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 indicated 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." In asmuch, 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 does require 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 mischievious 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 when they would prevent mutiny in the army -- equally constitutional at all places where they will conduce to the public safety, as against the dangers of Rebellion or Invasion. Take the particular case mentioned by the meeting. They assert 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 that 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 can not 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 wiley 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 the soldier boy that he is fighting in a bad cause, for a wicked administration of a contemptable 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 absence of rebellion or invasion, the public Safety does not require them; -- in other words, that the constitution is not, in it's 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 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 through 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 speak as "Democrats"; nor can I, with full 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 upon 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,4 is a democrat, having no old party affinity with me; and the judge who rejected the constitutional view -- expressed in these resolutions, by refusing to discharge Mr. V. on Habeas Corpus,5 is a democrat of better days than these, having received his judicial mantle at the hands of President Jackson. And still more, of all those 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 can not assert that there are none such.

And the name of President Jackson recalls a bit 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 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 release 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 others were fully liberated. A few days more, and the judge called General Jackson into Court and fined him a thousand dollars, 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 say whom the Journals would show to have voted for the measure."

There was clearly enough grounds for the president to exercise his powers under the Constitution in accordance with his interpretation, and the subsequent ruling by the Court in the Milligan case has no bearing on the rightness of his actions prior to that ruling.

It's just a sour grapes attack on his memory.

Walt