Doubtless, if this clause of the Constitution, improperly called, as I think, a limitation upon the power of Congress, were expunged, the other guarantees would remain the same; but the question is not how those guarantees would stand with that clause out of the Constitution, but how they stand with that clause remaining in it, in case of rebellion or invasion involving the public safety. If the liberty could be indulged of expunging that clause, letter and spirit, I really think the constitutional argument would be with you.
My general view 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 suspended when, in case of rebellion or invasion, the public safety may require it.
You ask, in substance, whether I really claim that I may override all the guaranteed rights of individuals, on the plea of conserving the public safety when I may choose to say the public safety requires it.
This question, divested of the phraseology calculated to represent me as struggling for an arbitrary personal prerogative, is either simply a question who shall decide, or an affirmation that nobody shall decide, what the public safety does require in cases of rebellion or invasion.
The Constitution contemplates the question as likely to occur for decision, but it does not expressly declare who is to decide it. By necessary implication, when rebellion or invasion comes, the decision is to be made from time to time; 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 combat a giant rebellion, and then be dealt with in turn only 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 others, 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 trials by juries, nor in a single case by any punishment whatever, beyond what is purely incidental to the prevention. The original sentence of imprisonment in Mr. Vallandigham's case was to prevent injury to the military service only, and the modification of it was made as a less disagreeable mode to him of securing the same prevention.
I am unable to perceive an insult to Ohio in the case of Mr.
Vallandigham. Quite surely nothing of the sort was or is intended.
I was wholly unaware that Mr. Vallandigham was, at the time of his arrest, a candidate for the Democratic nomination for governor until so informed by your reading to me the resolutions of the convention.
I am grateful to the State of Ohio for many things, especially for the brave soldiers and officers she has given in the present national trial to the armies of the Union.
You claim, as I understand, that according to my own position in the Albany response, Mr. Vallandigham should be released; and this because, as you claim, he has not damaged the military service by discouraging enlistments, encouraging desertions, or otherwise; and that if he had, he should 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 desertion and resistance to drafting.
We all know that combinations, armed in some instances, to resist the arrest of deserters began several months ago; that more recently the like has appeared in resistance to the 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 course in which Mr. Vallindigham 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 one 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 special friends and adherents. With perfect knowledge of them, he has frequently if not constantly made speeches in Congress and before popular assemblies; and if it can be shown that, with these things staring him in the face he has ever uttered a word of rebuke or counsel against them, it will be a fact greatly in his favor with me, and one of which as yet I am totally ignorant.