The Life, Public Services and State Papers of Abraham Lincoln

By Henry J. Raymond

Chapter 12



AT the very outbreak of the rebellion, the Administration was compelled to face one of the most formidable.  of the many difficulties which have embarrassed its  action. Long before the issue had been distinctly made  by the rebels in the Southern States, while, under the  protecting toleration of Mr. Buchanan's Administration,  the conspirators were making preparations for armed  resistance to the Government of the United States, evidences were not wanting that they relied upon the active  co-operation of men and parties in the Northern States,  whose political sympathies had always been in harmony  with their principles and their action. As early as in  January, 1861, while the rebels were diligently and  actively collecting arms and other munitions of war, by  purchase in the Northern States, for the contest on which  they had resolved, Fernando Wood, then Mayor of New  York, had apologized to Senator Toombs, of Georgia, for  the seizure by the police of New York of "arms intended  for and consigned to the State of Georgia," and had  assured him that "if he had the power, he should summarily punish the authors of this illegal and unjustifiable seizure of private property." The departments at Washington, the army and the navy, all places of responsibility and trust under the Government, and all departments of civil and political activity in the Northern  States, were found to be largely filled by persons in  active sympathy with the secession movement, and ready  at all times to give it all the aid and comfort in their  power. Upon the advent of the new Administration,  and when active measures began to be taken for the suppression of the rebellion, the Government found its plans  betrayed and its movements thwarted at every turn.  Prominent presses and politicians, moreover, throughout  the country, began, by active hostility, to indicate their  sympathy with those who sought, under cover of opposition to the Administration, to overthrow the Government, and it became speedily manifest that there was sufficient of treasonable sentiment throughout the North to  paralyze the authorities in their efforts, aided only by the  ordinary machinery of the law, to crush the secession  movement.

Under these circumstances, it was deemed necessary to  resort to the exercise of the extraordinary powers with  which, in extraordinary emergencies, the Constitution  had clothed the Government. That instrument had provided that "the privilege of the writ of habeas corpus  should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it." By  necessary implication, whenever, in such cases either of  rebellion or invasion, the public safety did require it, the  privilege of that writ might be suspended; and, from  the very necessity of the case, the Government which  was charged with the care of the public safety, was empowered to judge when the contingency should occur.  The only question that remained was, which department  of the Government was to meet this responsibility. If  the act was one of legislation, it could only be performed  by Congress and the President; if it was in its nature  executive, then it might be performed, the emergency requiring it, by the President alone. The pressing emergency of the case, moreover, went far towards dictating the  decision. Congress had adjourned on the 4th of March,  and could not be again assembled for some months;  and infinite and, perhaps fatal mischief might be done  during the interval, if the Northern allies of the rebellion  were allowed with impunity to prosecute their plans.

Under the influence of these considerations, the President, in his proclamation of the 3d of May, 1861, directing the commander of the forces of the United States on  the Florida coast to permit no person to exercise any  authority upon the islands of Key West, the Tortugas,  and Santa Rosa, which might be inconsistent with the  authority of the United States, also authorized him, "if  he should find it necessary, to suspend the writ of habeas  corpus, and to remove from the vicinity of the United  States fortresses all dangerous or suspected persons."  This was the first act of the Administration in that  direction; but it was very soon found necessary to resort  to the exercise of the same powers in other sections of the.  country. On the 25th of May, John Merryman, a resident of Hayfield, in Baltimore County, Maryland, known  by the Government to be in communication with the  rebels, and to be giving them aid and comfort, was  arrested and imprisoned in Fort McHenry, then commanded by General Cadwallader. On the Same day he  forwarded a petition to Roger B. Taney, Chief-Justice of  the United States, reciting the circumstances of his arrest,  and praying for the issue of the writ of habeas corpus.  The writ was forthwith issued, and General Cadwallader  was ordered to bring the body of Merryman before the  Chief-Justice on the 27th. On that day Colonel Lee presented a written communication from General Cadwallader, stating that Merryman had been arrested and committed to his custody by officers acting under the authority of the United States, charged with various acts of  treason: with holding a commission as lieutenant in a  company avowing its purpose of armed hostility against  the Government, and with having made often and unreserved declarations of his association with this armed force, and of his readiness to co-operate with those engaged in the present rebellion against the Government  of the United States. The General added, that he was  "duly authorized by the President of the United States  to suspend the writ of habeas corpus for the public  safety;" and that, while he fully appreciated the delicacy of the trust, he was also instructed "that, in times  of civil strife, errors, if any, should be on the side of  safety to the country." The commanding General accordingly declined to obey the writ, whereupon an  attachment was forthwith issued against him for contempt of court, made returnable at noon on the next day.  On that day, the marshal charged with serving the attachment made return that he was not admitted within  the fortress, and had consequently been unable to serve  the writ. The Chief-Justice, thereupon, read an opinion  that the President could not suspend the writ of habeas  corpus, nor authorize any military officer to do so, and  that a military officer had no right to arrest any person.  not subject to the rules and articles of war, for an offence  against the laws of the United States, except in aid of  the judicial authority, and subject to its control. The  Chief-Justice stated further, that the marshal had the  power to summon out the posse comitatus to enforce the  service of the writ, but as it was apparent that it would  be resisted by a force notoriously superior, the Court  could do nothing further in the premises.

On the 12th of May, another writ was issued by Judge  Giles, of Baltimore, to Major Morris, of the United States  Artillery, at Fort McHenry, who, in a letter dated the  14th, refused to obey the writ, because, at the time it was  issued, and for two weeks previous, the City of Baltimore had been completely under the control of the rebel  authorities, United States soldiers had been murdered in  the streets, the intention to capture that fort had been  openly proclaimed, and the legislature of the State was  at that moment debating the question of making war  upon the Government of the United States. All this in  his judgment, constituted a case of rebellion, and afforded sufficient legal cause for suspending the writ of habeas  corpus. Similar cases arose, and were disposed of in a  similar manner, in other sections of the country.

The Governor of Virginia had proposed to Mr. G.  Heincken, of New York, the agent of the New York and  Virginia Steamship Company, payment for two steamers  of that line, the Yorktown and Jamestown, which he had  seized for the rebel service, an acceptance of which proffer,  Mr. Heincken was informed, would be treated as an act  of treason to the Government; and on his application,  Mr. Seward, the Secretary of State, gave him the following reasons for this decision:--

An insurrection has broken out in several of the States of this Union,  including Virginia, designed to overthrow the Government of the United  States. The executive authorities of that State are parties to that insurrection, and so are public enemies. Their action in seizing or buying  vessels to be employed in executing that design, is not merely without  authority of law, but is treason. It is treason for any person to give  aid and comfort to public enemies. To sell vessels to them which it is  their purpose to use as ships of war, is to give them aid and comfort. To  receive money from them in payment for vessels which they have seized  for those purposes, would be to attempt to convert the unlawful seizure  into a sale, and would subject the party so offending to the pains and  penalties of treason, and the Government would not hesitate to bring the  offender to punishment.

These acts and decisions of the Government were vehemently assailed by the party opponents of the Administration, and led to the most violent and intemperate  assaults upon the Government in many of the public  prints. Some of these journals were refused the privilege of the public mails, the Government not holding  itself under any obligation to aid in circulating assaults  upon its own authority, and stringent restrictions were  placed upon the transmission of intelligence by telegraph.  On the 5th of July, 1869, Attorney-General Bates transmitted to the President an elaborate opinion, prepared at  his request, upon his power to make arrests of persons  known to have criminal complicity with the insurgents,  or against whom there is probable cause for suspicion  of such criminal complicity, and also upon his right to refuse to obey a writ of habeas corpus in case of such  arrests. The Attorney-General discussed the subject at  considerable length, and reached a conclusion favorable  to the action of the Government. From that time forward the Government exerted, with vigor and energy, all  the power thus placed in its hands to prevent the rebellion from receiving aid from those in sympathy with its  objects in the Northern States. A large number of  persons, believed to be in complicity with the insurgents,  were placed in arrest, but were released upon taking an  oath of allegiance to the United States Baltimore continued for some time to be the head-quarter's of conspiracies and movements of various kinds in aid of the rebellion, and the arrests were consequently more numerous  there than elsewhere. Indeed, very strenuous efforts  were made throughout the summer to induce some action  on the part of the legislature which would place the State  in alliance with the Rebel Confederacy, and it was confidently believed that an ordinance looking to this end  would be passed at the extra session which was convened  for the 17th of September; but on the 16th, nine secession  members of the House of Delegates, with the officers of  both houses, were arrested by General McClellan, then  in command of the army, who expressed his full approbation of the proceedings, and the session was not held.

The President at the time gave the following statement  of his views in regard to these arrests:--

The public safety renders it necessary that the grounds of these arrests  should at present be withheld, but at the proper time they will be made  public. Of one thing the people of Maryland may rest assured, that no  arrest has been made, or will be made, not based on substantial and un mistakable complicity with those in armed rebellion against the Government of the United States. In no case has an arrest been made on mere  suspicion, or through personal or partisan animosities; but in all cases  the Government is in possession of tangible and unmistakable evidence,  which will, when made public, be satisfactory to every loyal citizen.

Arrests continued to be made under authority of the  State Department, not without complaint, certainly, from  large numbers of the people, but with the general acquiescence of the whole community, and beyond all question  greatly to the advantage of the Government and the country. On the 14th of February, 1862, an order was issued  on the subject, which transferred control of the whole  matter to the War Department. The circumstances which  had made these arrests necessary are stated with so much  clearness and force in that order, that we insert it at  length, as follows:--



The breaking out of a formidable insurrection, based on a conflict of  political ideas, being an event without precedent in the United States,  was necessarily attended by great confusion and perplexity of the public  mind. Disloyalty, before unsuspected, suddenly became bold, and treason  astonished the world by bringing at once into the field military forces  superior in numbers to the standing army of the United States.

Every department of the Government was paralyzed by treason. Defection appeared in the Senate, in the House of Representatives, in the  Cabinet, in the Federal Courts; ministers and consuls returned from  foreign countries to enter the insurrectionary councils, or land or naval  forces; commanding and other officers of the army and in the navy betrayed the councils or deserted their posts for commands in the insurgent  forces. Treason was flagrant in the revenue and in the post-office service,  as well as in the Territorial governments and in the Indian reserves.

Not only governors, judges, legislators, and ministerial officers in the  States, but even whole States, rushed, one after another, with apparent  unanimity, into rebellion. The Capital was besieged, and its connection  with all the States cut off.

Even in the portions of the country which were most loyal, political  combinations and secret societies were formed, furthering the work of  disunion, while, from motives of disloyalty or cupidity, or from excited  passions or perverted sympathies, individuals were found furnishing men,  money, and materials of war and supplies to the insurgents' military and  naval forces. Armies, ships, fortifications, navy yards, arsenals, military  posts and garrisons, one after another, were betrayed or abandoned to the  insurgents.

Congress had not anticipated and so had not provided for the emergency.  The municipal authorities were powerless and inactive. The judicial machinery seemed as if it had been designed not to sustain the Government,  but to embarrass and betray it.

Foreign intervention, openly invited and industriously instigated by the  abettors of the insurrection, became imminent, and has only been prevented by the practice of strict and impartial justice, with the most perfect  moderation in our intercourse with nations.

The public mind was alarmed and apprehensive, though fortunately  not distracted or disheartened. It seemed to be doubtful whether the  Federal Government, which one year before had been thought a model  worthy of universal acceptance, had indeed the ability to defend and  maintain itself.

Some reverses, which perhaps were unavoidable, suffered by newly  levied and inefficient forces, discouraged the loyal, and gave new hopes  to the insurgents. Voluntary enlistments seemed about to cease, and  desertions commenced. Parties speculated upon the question whether  conscription had not become necessary to fill up the armies of the United  States.

In this emergency the President felt it his duty to employ with energy  the extraordinary powers which the Constitution confides to him in cases  of insurrection. He called into the field such military and naval forces,  unauthorized by the existing laws, as seemed necessary. He directed  measures to prevent the use of the post-office for treasonable correspondence. He subjected passengers to and from foreign countries to new  passport regulations, and he instituted a blockade, suspended the writ of  habeas corpus in various places, and caused persons who were represented  to him as being or about to engage in disloyal or treasonable practices to  be arrested by special civil as well as military agencies, and detained in  military custody, when necessary, to prevent them and deter others from  such practices. Examinations of such cases were instituted, and some of  the persons so arrested have been discharged from time to time, under  circumstances or upon conditions compatible, as was thought, with the  public safety.

Meantime a favorable change of public opinion has occurred. The line  between loyalty and disloyalty is plainly defined; the whole structure of  the Government is firm and stable; apprehensions of public danger and  facilities for treasonable practices have diminished with the passions which  prompted heedless persons to adopt them. The insurrection is believed  to have culminated and to be declining.

The President, in view of these facts, and anxious to favor a return to  the normal course of the Administration, as far as regard for the public  welfare will allow, directs that all political prisoners or state prisoners  now held in military custody, be released on their subscribing to a parole  engaging them to render no aid or comfort to the enemies in hostility to  the United States.

The Secretary of War will, however, at his discretion, except from the  effect of this order any persons detained as spies in the service of the insurgents, or others whose release at the present moment may be deemed  incompatible with the public safety.

To all persons who shall be so released, and who shall keep their parole, the President grants an amnesty for any past offences of treason or dis loyalty which they may have committed.

Extraordinary arrests will hereafter be made under the direction of the  military authorities alone.

By order of the President:

EDWIN M. STANTON. Secretary of War.

On the 27th of the same month, a commission was appointed by the War Department, consisting of Major-General Dix and Hon. Edwards Pierrepont, of New  York, to examine into the cases of the state prisoners  then remaining in custody, and to determine whether, in  view of the public safety and the existing rebellion, they  should be discharged, or remain in arrest, or be remitted  to the civil tribunals for trial. These gentlemen entered  at once upon the discharge of their duties, and a large  number of prisoners were released from custody on taking  the oath of allegiance. Wherever the public safety  seemed to require it, however, arrests continued to be  made--the President, in every instance, assuming all the  responsibility of these acts, and throwing himself upon  the courts and the judgment of the country for his vindication. But the President himself had not up to this time  directed any general suspension of the writ of habeas  corpus, or given any public notice of the rules by which  the Government would be guided in its action upon cases  that might arise. It was left to the Secretary of War to  decide in what instances and for what causes arrests should  be made, and the privilege of the writ should be suspended. In some of the courts into which these cases  were brought, the ground was accordingly taken that,  although the President might have authority under the  Constitution, when, in cases of rebellion or invasion, the  public safety should require it, to suspend the writ, he  could not delegate that authority to any subordinate. To  meet this view, therefore, the President, on the 24th of  September, 1862, issued the following.


Whereas, it has been necessary to call into service, not only volunteers,  but also portions of the militia of the States by draft, in order to suppress the insurrection existing in the United States, and disloyal persons are  not adequately restrained by the ordinary processes of law from hindering  this measure, and from giving aid and comfort in various ways to the insurrection

Now, therefore, be it ordered--

First. That during the existing insurrection, and as a necessary measure  for suppressing the same, all rebels and insurgents, their aiders and abettors,  within the United States, and all persons discouraging volunteer enlist ments, resisting military drafts, or guilty of any disloyal practice affording  aid and comfort to the rebels against the authority of the United States,  shall be subject to martial law, and liable to trial and punishment by  courts-martial or military commission.

Second. That the writ of habeas corpus is suspended in respect to all  persons arrested, or who are now, or hereafter during the rebellion shall  be, imprisoned in any fort, camp, arsenal, military prison, or other place  of confinement, by any military authority, or by the sentence of any  court-martial or military commission.

In witness whereof, I have hereunto set my hand and seal, and caused  the seal of the United States to be affixed.

Done at the City of Washington, this twenty-fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the independence of the United States the eighty-seventh.


[L. S.]



By the President:

WILLIAM H. SEWARD, Secretary of State.

This proclamation was accompanied by orders from the  War Department appointing a Provost-Marshal-General,  whose head-quarters were to be at Washington, with  special provost-marshals, one or more in each State,  charged with the duty of arresting deserters and disloyal  persons, and of inquiring into treasonable practices  throughout the country. They were authorized to call  upon either the civil or military authority for aid in the  discharge of their duties, and were required to report to  the department at Washington. The creation of this new  department had been made necessary by the increased  activity of the enemies of the Government throughout the  North, and by the degree of success which had attended  their efforts. Prompted partly by merely political and  partisan motives, but in many instances by thorough sympathy with the secession movement, active political leaders had set in vigorous motion very extensive machinery  for the advancement of their designs. "Peace-meetings"  were held in every section of the Northern States, at which  the action of the Government was most vehemently assailed, the objects of the war were misrepresented, and its  prosecution denounced, and special efforts made to prevent  enlistments, to promote desertions, and in every way to  cripple the Government in its efforts to subdue the rebellion by force of arms. The vigorous action of the Government, however, in arresting men conspicuous in these.  disloyal practices, had created a salutary reaction in the  public mind, and had so far relieved the Administration  from apprehension as to warrant the promulgation of the  following order:--


Ordered--1. That all persons now in military custody, who have been  arrested for discouraging volunteer enlistments, opposing the draft, or for  otherwise giving aid and comfort to the enemy, in States where the draft  has been made, or the quota of volunteers and militia has been furnished.  shall be discharged from further military restraint.

2. The persons who, by the authority of the military commander or  governor in rebel States, have been arrested and sent from such State for  disloyalty or hostility to the Government of the United States, and are  now in military custody, may also be discharged upon giving their parole  to do no act of hostility against the Government of the United States, nor  render aid to its enemies. But all such persons shall remain subject to  military surveillance and liable to arrest on breach of their parole. And  if any such persons shall prefer to leave the loyal States on condition of  their not returning again during the war, or until special leave for that  purpose be obtained from the President, then such persons shall, at his  option, be released and depart from the United States, or be conveyed  beyond the military lines of the United States forces.

3. This order shall not operate to discharge any person who has been in  arms against the Government, or by force and arms has resisted or at tempted to resist the draft, nor relieve any person from liability to trial  and punishment by civil tribunals, or by court-martial or military commission, who may be amenable to such tribunals for offences committed.

By order of the Secretary of War:

E. D. TOWNSEND, Assistant Adjutant-General.

During the succeeding winter, while Congress was in  session, public sentiment was comparatively at rest on this subject. Congress had enacted a law, sanctioning the  action of the President in suspending the writ of habeas  corpus, and clothing him with full authority to check and  punish all attempts to defeat the efforts of the Government  in the prosecution of the war. After the adjournment,  however, when the political activity of the country was  transferred from the Capital to the people in their respective localities, the party agitation was revived, and public  meetings were again held to denounce the conduct of the  Government, and to protest against the full prosecution of the war. One of the most active of these advocates of peace with the Rebel Confederacy was Hon. C. L.  Vallandigham, member of Congress from Ohio, who had  steadily opposed all measures for the prosecution of the  war throughout the session. After the adjournment he  made a political canvass of his district, and in a speech at  Mount Vernon, on the 1st of May, he denounced the Government at Washington as aiming, in the conduct of the  war, not to restore the Union, but to crush out liberty and  establish a despotism. He declared that the war was  waged for the freedom of the blacks and the enslaving of  the whites--that the Government could have had peace  long before if it had desired it--that the mediation of  France ought to have been accepted, and that the Government had deliberately rejected propositions by which the  Southern States could have been brought back to the  Union. He also denounced an order, No. 38, issued by  General Burnside, in command of the department, forbidding certain disloyal practices, and giving notice that persons declaring sympathy for the enemy would be arrested  for trial, proclaimed his intention to disobey it, and called  on the people who heard him to resist and defeat its execution.

For this speech Mr. Vallandigham was arrested, by order  of General Burnside, on the 4th of May, and ordered for  trial before a court-martial at Cincinnati. On the 5th, he  applied, through his counsel, Senator Pugh, to the Circuit  Court of the United States for a writ of habeas corpus  In reply to this application, a letter was read from General Burnside, setting forth the considerations which had  led him to make the arrest, and Vallandigham's counsel  was then heard in a very long argument on the case.  Judge Stewart pronounced his decision, refusing the writ,  on the ground that the action of General Burnside was  necessary for the public safety. "The legality of the arrest," said the judge, "depends upon the extent of the  necessity for making it, and that was to be determined by  the military commander." And he adds--

Men should know and lay the truth to heart, that there is a course of  conduct not involving overt treason, and not therefore subject to punishment as such, which, nevertheless, implies moral guilt, and a gross offence  against the country. Those who live under the protection and enjoy the  blessings of our benignant Government, must learn that they cannot stab  its vitals with impunity. If they cherish hatred and hostility to it, and  desire its subversion, let them withdraw from its jurisdiction, and seek the  fellowship and protection of those with whom they are in sympathy. If  they remain with us, while they are not of us, they must be subject to  such a course of dealing as the great law of self-preservation prescribes  and will enforce. And let them not complain if the stringent doctrine of  military necessity should find them to be the legitimate subjects of its  action. I have no fear that the recognition of this doctrine will lead to  an arbitrary invasion of the personal security, or personal liberty, of the  citizen. It is rare indeed that a charge of disloyalty will be made on  insufficient grounds. But if there should be an occasional mistake, such  an occurrence is not to be put in competition with the preservation of the  nation; and I confess I am but little moved by the eloquent appeals of  those who, while they indignantly denounce violation of personal liberty,  look with no horror upon a despotism as unmitigated as the world has  ever witnessed.

The military commission, before which Vallandigham  was ordered for trial, met on the 6th, found him guilty of  the principal offences charged, and sentenced him to be  placed in close confinement in some fortress of the United  States, to be designated by the commanding officer of that  department. Major-General Burnside approved the sentence, and designated Fort Warren, in Boston Harbor, as  the place of confinement. The President modified this  sentence by directing that, instead of being imprisoned,  Mr. Vallandigham should be sent within the rebel lines,  and should not return to the United States until after the termination of the war. This sentence was at once carried  into execution.

The arrest, trial, and sentence of Mr. Vallandigham  created a good deal of excitement throughout the country.  The opponents of the Administration treated it as a case  of martyrdom, and held public meetings for the purpose  of denouncing the action of the Government as tyrannical.  and highly dangerous to the public liberties. One of the  earliest of these demonstrations was held at Albany, N. Y.,  on the 16th of May, at which Hon. Erastus Corning presided, and to which Governor Seymour addressed a letter,  expressing in the strongest terms his condemnation of the  course pursued by the Government. "If this proceeding," said he, speaking of the arrest of Vallandigham, "is  approved by the Government, and sanctioned by the  people, it is not merely a step towards revolution--it is  revolution. It will not only lead to military despotism-it establishes military despotism. In this aspect it must  be accepted, or in this aspect rejected. * * * The  people of this country now wait with the deepest anxiety  the decision of the Administration upon these acts. Having given it a generous support in the conduct of the war,  we pause to see what kind of a government it is for which  we are asked to pour out our blood and our treasure.  The action of the Administration will determine, in the  minds of more than one-half of the people of the loyal  States, whether this war is waged to put down rebellion  at the South, or destroy free institutions at the North."  The resolutions which were adopted at this meeting  pledged the Democratic party of the State to the preservation of the Union, but condemned in strong terms the  whole system of arbitrary arrests, and the suspension of  the writ of habeas corpus.

A copy of these resolutions was forwarded by the presiding officer to President Lincoln, who sent the following letter in reply:--



Gentlemen:--Your letter of May 19, enclosing 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 tile 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 were  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 sup press the rebellion, and I have not knowingly employed, nor shall 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 trial for 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, be cause the arrests complained of were not made for treason--that is, not  for the treason defined in the Constitution, and upon 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 arrest. Let  us consider the real case with which we are dealing, and apply to it 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  United States forts, and had fired upon the United States flag, all before  I was inaugurated, and, of course, before I had done any official act what ever. The rebellion thus began soon ran into the present civil war;  and, in certain respects, it began on very unequal terms between the par ties. The insurgents had been preparing for it 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  altogether, 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 com munities 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 among 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 inaungurating, by the Constitution itself  the "habeas corpus" might be suspended; but they also knew they had  friends who would make a question as to who was to suspend it: mean while, 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 opening hostilities, their machinery was put fairly 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 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 the 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 too 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 resolution 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 pub lic 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 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  low 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 B. 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 indicate 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 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 mischievous interference with the raising and supplying of armies to sup press 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 particular 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 con cede 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 en courage 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 per sonal 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 this arrest  was made on mistake of fact, which I would be glad to correct on reasonable 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 desertions  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 the soldier boy that he is fighting in a bad cause, for a 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 pub lic 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 time 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 not to 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 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 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 view 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 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. Vallandig ham, while I have not heard of a single one condemning it. I cannot  assert that there are none such. And the name of Jackson recalls an  incident 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. Louiallier published a denunciatory newspaper article. General Jackson arrested him.  A lawyer by the name of Morrel procured the United States Judge Hall  to issue a writ of habeas corpus to relive Mr. Louiallier. General Jack son 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 a 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  $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 pre pared to say whom the journals would show to have 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 what ever 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 practise a general directory and revisory  power in the matter.

One of the resolutions expresses 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 so 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.


Similar meetings were held in New York, Philadelphia,  and other cities and towns of the North, and, on the 11th  of June, a State Convention of the Democratic party was  held at Columbus, Ohio, for the nomination of State officers. Mr. Vallandigham was, at that convention, made  the Democratic candidate for Governor, receiving, on the  first ballot, four hundred and forty-eight votes out of four  hundred and sixty-one, the whole number cast. Senator  Pugh was nominated for Lieutenant-Governor, and resolutions were adopted protesting against President Lincoln's emancipation proclamation; condemning martial  law in loyal States, where war does not exist; denouncing the suspension of the writ of habeas corpus; protesting very strongly against the banishment of Vallandigham, and calling on the President to restore him to his  rights; declaring that they would hail with delight the  desire of the seceded States to return to their allegiance,  and that they would co-operate with the citizens of those  States in measures for the restoration of peace.

A committee of the convention visited Washington,  and on the 26th of June presented to the President the  resolutions adopted by the convention, and urged the  immediate recall and restoration of Mr. Vallandigham,  their candidate for Governor. To this, President Lincoln.  made the following reply:--

WASHINGTON, June 29, 1863.

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, New York, 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 de sire 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 merely 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 in expunging that clause, letter and spirit, I really think the constitutional argument would be with you.

My general view on this question was stated in the Albany response,  and hence I do not state it now. I only add that, as 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 sus pended, 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; and I think the man whom, for the time, the  people have, under the Constitution, made the commander-in-chief of  their 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 com bat a giant 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 injunctions 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 trial 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 of 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 be cause, as you claim, he has not damaged the military service by discouraging enlistments, encouraging desertions, or otherwise; and that if he  had, he should have been 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 desertions 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 enrolment 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 cause 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 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 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 counselled 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 incline to desert and to escape the draft to believe it is your purpose to protect them, and to hope that you will become strong enough to do so.After a short personal intercourse with you, gentlemen of the committee, I cannot say I 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. If 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 thereby committed to the following propositions, and to nothing else:--

1. That there is now 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 constitutional means for suppressing that rebellion.
2. That no one of you will do any thing 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 that 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, 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 would not put himself  practically in antagonism with the position of 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.,


The canvass throughout the summer was very animated.  As a matter of course, the opponents of the Administration  in Ohio, as elsewhere throughout the country, made this  matter of arbitrary arrests a very prominent point of attack.  Special stress was laid upon the fact that, instead of acting  directly and upon his own responsibility in these cases,  the President left them to the discretion of military commanders in the several departments. This was held to be  in violation of the law of Congress which authorized the  President to suspend the writ of habeas corpus, but not  to delegate that high prerogative. To meet this objection,  therefore, and also in order to establish a uniform mode  of action on the subject, the President issued the following


Whereas, the Constitution of the United States has ordained 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;  and, whereas, a rebellion was existing on the 3d day of March, 1863, which  rebellion is still existing; and, whereas, by a statute which was approved on that day, it was enacted by the Senate and House of Representatives  of the United States, in Congress assembled, that during the present insurrection the President of the United States, whenever, in his judgment,  the public safety may require, is authorized to suspend the privilege of the  writ of habeas corpus in any case throughout the United States, or any  part thereof; and, whereas, in the judgment of the President the public  safety does require that the privilege of the said writ shall now be suspended throughout the United States in cases where, by the authority of  the President of the United States, military, naval, and civil officers of the  United States, or any of them, hold persons under their command or in  their custody, either as prisoners of war, spies, or aiders or abettors of the  enemy, or officers, soldiers, or seamen enrolled, drafted, or mustered, or  enlisted in, or belonging to the land or naval forces of the United States,  or as deserters there from, or otherwise amenable to military law, or to  the rules and articles of war, or the rules and regulations prescribed for the  military or naval services by the authority of the President of the United  States, or for resisting the draft, or for any other offence against the military  or naval service: Now, therefore, I, Abraham Lincoln, President of the  United States, do hereby proclaim and make known to all whom it may concern, that the privilege of the writ of habeas corpus is suspended throughout  the United States in the several cases before mentioned, and that this suspension will continue throughout the duration of the said rebellion, or  until this Proclamation shall, by a subsequent one, to be issued by the  President of the United States, be modified and revoked. And I do here by require all magistrates, attorneys, and other civil officers within  the United States, and all officers and others in the military and naval  services of the United States, to take distinct notice of this suspension and  give it full effect, and all citizens of the United States to conduct and  govern themselves accordingly, and in conformity with the Constitution  of the United States and the laws of Congress in such cases made and  provided.

In testimony whereof, I have hereunto set my hand and caused the seal  of the United States to be affixed, this fifteenth day of September, in the  year of our Lord one thousand eight hundred and sixty-three, and of the  independence of the United States of America the eighty-eighth.


By the President: WM. H. SEWARD, Secretary of State.

The act passed by Congress "for enrolling and calling  out the national forces," commonly called the Conscription Act, provided that all able-bodied male citizens, and  persons of foreign birth who had declared their intention  to become citizens, between the ages of twenty and forty-five, were liable to be called into service. The strenuous efforts made by the enemies of the Administration to arouse  the hostility of the people against its general policy, had  proved so far successful as greatly to discourage volunteer enlistments; and the Government was thus compelled  to resort to the extraordinary powers conferred upon it  by this act. Questions had been raised as to the liability  of foreigners to be drafted under this law; and in order  to settle this point, the President, on the 8th of May, issued  the following proclamation.

WASHINGTON, May 8, 1863.

By the President of the United States of America.


Whereas, the Congress of the United States, at its last session, enacted  a law, entitled "An Act for enrolling and calling out the national forces,  and for other purposes," which was approved on the 3d day of March  last; and

Whereas, it is recited in the said act that there now exists in the United  States an insurrection and rebellion against the authority thereof, and it  is, under the Constitution of the United States, the duty of the Government to suppress insubordination and rebellion, to guarantee to each State  a republican form of government, and to preserve the public tranquillity;  and

Whereas, for these high purposes, a military force is indispensable, to  raise and support which all persons ought willingly to contribute; and

Whereas, no service can be more praiseworthy and honorable than  that which is rendered for the maintenance of the Constitution and the  Union, and the consequent preservation of free government; and

Whereas, for the reasons thus recited it was enacted by the said statute that all able-bodied male citizens of the United States, and persons  of foreign birth who shall have declared on oath their intentions to become  citizens under and in pursuance of the laws thereof, between the ages of  twenty and forty-five years, with certain exemptions not necessary to be  here mentioned, are declared to constitute the National forces, and shall  be liable to perform military duty in the service of the United States,  when called out by the President for that purpose; and

Whereas, it is claimed, on and in behalf of persons of foreign birth, with in the ages specified in said act, who have heretofore declared on oath their  intentions to become citizens under and in pursuance to the laws of the  United States, and who have not exercised the right of suffrage, or any  other political franchise under the laws of the United States, or of any of  the States thereof, that they are not absolutely precluded by their afore said declaration of intention from renouncing their purpose to become  citizens; and that, on the contrary, such persons, under treaties and the law of nations, retain a right to renounce that purpose, and to forego  the privilege of citizenship and residence within the United States, under  the obligations imposed by the aforesaid act of Congress:

Now, therefore, to avoid all misapprehensions concerning the liability of  persons concerned to perform the service required by such enactment, and  to give it full effect, I do hereby order and proclaim that no plea of alien age will be received, or allowed to exempt from the obligations imposed  by the aforesaid act of Congress any person of foreign birth who shall  have declared on oath his intention to become a citizen of the United  States, under the laws thereof, and who shall be found within the United  States at any time during the continuance of the present insurrection and  rebellion, at or after the expiration of the period of sixty-five days from the  date of this proclamation; nor shall any such plea of alienage be allowed  in favor of any such person who has so, as aforesaid, declared his intention to become a citizen of the United States, and shall have exercised at  any time the right of suffrage, or any other political franchise within the  United States, under the laws thereof, or under the laws of any of the  several States.

In witness whereof, I have hereunto set my hand, and caused the seal  of the United States to be affixed.

Done at the City of Washington, this 8th day of May, in the year of our Lord one thousand eight hundred and sixty-three, and of the independence of the United States the eighty-seventh.

[ L.S.]


By the President:  WILLIAM H. SEWARD, Secretary of State.

It was subsequently ordered that the draft should take  place in July, and public proclamation was made of the  number which each State would be required to furnish.  Enrolling officers had been appointed for the several districts of all the States, and, all the names being placed in  a wheel, the number required were to be publicly drawn,  under such regulations as were considered necessary to  insure equal and exact justice. Very great pains had  been taken by the opponents of the Administration to excite  odium against that clause of the law which fixed the price  of exemption from service under the draft at three hundred  dollars. It was represented that this clause was for the  special benefit of the rich, who could easily pay the sum  required; while poor men who could not pay it would be  compelled, at whatever hardships to themselves and their  families, to enter the army. The draft was commenced in the City of New York on Saturday, July 11th, and was conducted quietly and successfully during that day. On Sunday plots were formed and combinations entered into to resist it; and no sooner was it resumed on Monday morning, July 13, than a sudden and formidable attack was made by an armed mob upon the office in one of the districts; the wheel was destroyed, the lists scattered, and the building set on fire. The excitement spread through the city. Crowds gathered everywhere, with no apparent common object; but during the day the movement seemed to be controlled by leaders in two general directions. The first was an attack upon the negroes; the second an assault upon every one who was supposed to be in any way concerned in the draft, or prominently identified, officially or otherwise, with the Administration or the Republican party. Unfortunately, the militia regiments of the city had been sent to Pennsylvania to withstand the rebel invasion; and the only guardians left for the public peace were the regular police and a few hundred soldiers who garrisoned the forts. Both behaved with the greatest vigor and fidelity, but they were too few to protect the dozen miles between the extremities of the city. The mob, dispersed in one quarter, would reassemble at another, and for four days the city seemed given up to their control. The outrages committed during this time were numerous and aggravated. Negroes were assaulted, beaten to death, mutilated, and hung; building after building was sacked and burned; gangs of desperadoes patrolled the streets, levying contributions, and ordering places of business to be closed. A Colored Orphan Asylum, sheltering some hundreds of children, was sacked and burned. After the first day, the riot, which was at first directed against the draft, took a new turn. The entire mass of scoundrelism in the city seemed to have been let loose for indiscriminate plunder. Women, half-grown boys, and children, were foremost in the work of robbery, and no man felt safe from attack. The police force did their duty manfully, aided at first by the few troops at the disposal of the authorities, and subsequently by the regiments who began to return from Pennsylvania. In the street-fights  which occurred, many of the defenders of law and order  lost their lives, while a far larger number of the rioters  were killed. The bands of rioters were finally dispersed,  and the peace of the city was restored.

During these occurrences the draft was necessarily suspended; and on the 3d of August, Governor Seymour  addressed a long letter to the President, asking that further proceedings under the draft might be postponed until  it should be seen whether the number required from the  State of New York could not be raised by volunteering,  and also until the constitutionality of the law could be  tested in the judicial tribunals of the country. The  Governor pointed out an alleged injustice in the application of the law, by which, in four districts of the State of  New York, a far higher quota in proportion to the population was required than in the other districts of the State;  and this was urged as an additional reason for postponing  the further execution of the law.

To this appeal the President, on the 7th of August,  made the following reply:--


His Excellency HORATIO SEYMOUR,  Governor of New York, Albany, N. Y.:

Your communication of the 3d inst. has been received and attentively  Considered. I cannot consent to suspend the draft in New York, as you  request, because, among other reasons, TIME is too important. By the  figures you send, which I presume are correct, the twelve districts represented fall in two classes of eight and four respectively.

The disparity of the quotas for the draft in these two classes is certainly  very striking, being the difference between an average of 2,200 in one  class, and 4,864 in the other. Assuming that the districts are equal, one  to another, in entire population, as required by the plan on which they  were made, this disparity is such as to require attention. Much of it,  however, I suppose win be accounted for by the fact that so many more  persons fit for soldiers are in the city than are in the country, who have  too recently arrived from other parts of the United States and from Europe  to be either included in the census of 1860, or to have voted in 1862.  Still, malting due allowance for this, I am yet unwilling to stand upon it  as an entirely sufficient explanation of the great disparity. I shah direct

the draft to proceed in all the districts, drawing, however, at first from  each of the four districts--to wit, the Second, Fourth, Sixth, and Eighth- only, 2,200 being the average quota of the other class. After this drawing,  these four districts, and also the Seventeenth and Twenty-ninth, shall be  carefully re-enrolled; and, if you please, agents of yours may witness  every step of the process. Any deficiency which may appear by the new  enrolment will be supplied by a special draft for that object, allowing due  credit for volunteers who may be obtained from these districts respectively  during the interval; and at all points, so far as consistent with practical  convenience, due credits shall be given for volunteers, and your Excellency shall be notified of the time fixed for commencing a draft in each  district.

I do not object to abide a decision of the United States Supreme Court,  or of the Judges thereof, on the constitutionality of the draft law. In  fact, I should be willing to facilitate the obtaining of it. But I cannot  consent to lose the time while it is being obtained. We are contending  with an enemy who, as I understand, drives every able-bodied man he  can reach into his ranks, very much as a butcher drives bullocks into a  slaughter-pen. No time is wasted, no argument is used. This produces  an army which will soon turn upon our now victorious soldiers already in  the field, if they shall not be sustained by recruits as they should be. It  produces an army with a rapidity not to be matched on our side, if we first  waste time to re-experiment with the volunteer system, already deemed  by Congress, and palpably, in fact, so far exhausted as to be inadequate;  and then more time to obtain a Court decision as to whether a law is constitutional which requires a part of those not now in the service to go to  the aid of those who are already in it; and still more time to determine  with absolute certainty that we get those who arc to go in the precisely  legal proportion to those who are not to go. My purpose is to be in my  action just and constitutional, and yet practical, in performing the important duty with which I am charged, of maintaining the unity and the free  principles of our common country.

Your obedient servant,  A. LINCOLN.

On the 8th Governor Seymour replied, reasserting the  unfairness and injustice of the enrolments, and expressing  his regret at the President's refusal to postpone the draft.  He also sent a voluminous statement, prepared by Judge-Advocate Waterbury, designed to sustain the position he  had previously assumed. To this the President thus replied:--


His Excellency HORATIO SEYMOUR,  Governor of New York:

Yours of the 8th, with Judge-Advocate General Waterbury's report,  was received to-day.

Asking you to remember that I consider time as being very important,  both to the general cause of the country and to the soldiers in the field, I  beg to remind you that I waited, at your request, from the 1st until the  6th inst., to receive your communication dated the 3d. In view of its  great length, and the known time and apparent care taken in its preparation, I did not doubt that it contained your full case as you desired to  present it. It contained the figures for twelve districts, omitting the  other nineteen, as I suppose, because you found nothing to complain of  to them. I answered accordingly. In doing so I laid down the principle  to which I purpose adhering, which is to proceed with the draft, at the  same time employing infallible means to avoid any great wrong. With  the communication received to-day you send figures for twenty-eight districts, including the twelve sent before, and still omitting three, for which  I suppose the enrolments are not yet received. In looking over the fuller  list of twenty-eight districts, I find that the quotas for sixteen of them are  above 2,000 and below 2,700, while, of the rest, six are above 2,700 and  six are below 2,000. Applying the principle to these new facts, the Fifth  and Seventh Districts must be added to the four in which the quotas have  already been reduced to 2,200 for the first draft; and with these four  others must be added to those to be re-enrolled. The correct case will  then stand: the quotas of the Second, Fourth, Fifth, Sixth, Seventh, and  Eighth Districts fixed at 2,200 for the first draft. The Provost-Marshal  General informs me that the drawing is already completed in the Sixteenth, Seventeenth, Eighteenth, Twenty-second, Twenty-fourth, Twenty sixth, Twenty-seventh, Twenty-eighth, Twenty-ninth, and Thirtieth Districts. In the others, except the three outstanding, the drawing will be  made upon the quotas as now fixed. After the first draft, the Second,  Fourth, Fifth, Sixth, Seventh, Eighth, Sixteenth, Seventeenth, Twenty first, Twenty-fifth, Twenty-ninth, and Thirty-first will be enrolled for the  purpose, and in the manner stated in my letter of the 7th inst. The same  principle will be applied to the now outstanding districts when they shall  come in. No part of my former letter is repudiated by reason of not  being restated in this, or for any other cause.

Your obedient servant,  A. LINCOLN.

The draft in New York was resumed on the 19th of August, and as ample preparations had been made for the  preservation of the public peace, it encountered no further opposition. In every other part of the country the proceedings were conducted and completed without resistance.

Some difficulty was experienced in Chicago, and the  Mayor and Comptroller of that city addressed the President on the subject of alleged frauds in the enrolment,  and received the following dispatch in reply:--

WASHINGTON, August 27, 1863.

F. C. SHERMAN, Mayor; J. S. HAYS, Comptroller:

Yours of the 24th, in relation to the draft, is received. It seems to me  the Government here will be overwhelmed if it undertakes to conduct  these matters with the authorities of cities and counties. They must be  conducted with the Governors of States, who will, of course, represent  their cities and counties. Meanwhile, you need not be uneasy until you  again hear from here. A. LINCOLN.

Subsequently, in reply to further representations on the  subject, the same gentlemen received the following:--

WASHINGTON, September 7, 1863.

Yours of August 29th just received. I suppose it was intended by Congress that this Government should execute the act in question without  dependence upon any other Government, State, City, or County. It is,  however, within the range of practical convenience to confer with the  Governments of States, while it is quite beyond that range to have correspondence on the subject with counties and cities. They are too numerous. As instances, I have corresponded with Governor Seymour, but  not with Mayor Opdyke; with Governor Curtin, but not with Mayor  Henry.




Book Navigation Title Page Preface Illustrations Memorandum Table of Contents   ► Chapter I.   ► Chapter II.   ► Chapter III.   ► Chapter IV.   ► Chapter V.   ► Chapter VI.   ► Chapter VII.   ► Chapter VIII.   ► Chapter IX.   ► Chapter X.   ► Chapter XI.   ► Chapter XII.   ► Chapter XIII.   ► Chapter XIV.   ► Chapter XV.   ► Chapter XVI.   ► Chapter XVII.   ► Chapter XVIII.   ► Chapter XIX.   ► Chapter XX.   ► Chapter XXI. Anecdotes and Reminiscences of President Lincoln.   ► Mr. Lincoln's Sadness   ► His Favorite Poem   ► His Religious Experience   ► His Sympathy   ► His Humor, Shrewdness, and Sentiment   ► The Emancipation Proclamation Appendix. Letters on Sundry Occasions.   ► To Mr. Lodges, of Kentucky   ► To General Hooker   ► To John B. Fry   ► To Governor Magoffin   ► To Count Gasparin   ► The President and General McClellan   ► Warnings Against Assassination Reports, Dispatches, and Proclamations Relating to the Assassination.   ► Secretary Stanton to General Dix   ► The Death-Bed   ► The Assassins   ► Reward Offered by Secretary Stanton   ► Flight of the Assassins   ► The Conspiracy Organized in Canada   ► Booth Killed. Harold Captured   ► Reward Offered by President Johnson   ► The Funeral Official Announcements   ► Acting Secretary Hunger to Minister Adams   ► Acting Secretary Hunter to his Subordinates   ► Orders from Secretary Stanton and General Grant   ► Orders from Secretary "Welles   ► Order from Secretary McCulloch   ► Order from Postmaster-General Dennison   ► Proclamation by President Johnson of a Day of Humiliation and Mourning.   ► Secretary Stanton to Minister Adams   ► Important Letter from J. Wilkes Booth   ► Indictment of the Conspirators   ► The Finding of the Court