of the times, has also decided that the writ of habeas corpus mentioned in the Constitution is the great writ ad subjiciThat writ, in its nature, action, and objects, is tersely and accurately described by Sir William Blackstone. I adopt he language, as found in his Commentaries, Book 3, p. 131: "But the great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum, Erected to the person detaining another and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, ad faciendum, subjiciendum et recipiendum, to do, submit to, and receive whatsoever the judge or court awarding such writ shall consider in that behalf. This is a high prerogative writ, and therefore by the common law, issuing out of the Court of King's Bench, only in term time, but also during the vacation by a fiat frota the Chief Justice or any other of the judges, and runting into all parts of the King's dominions; for the King is at all times entitled to have an account why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted." Such is the writ of habeas corpus, of which the Constitution declares that the privilege thereof shall not be suspended except when, in cases of rebellion or invasion, the public safety may require it. But the Constitution is silent to who may suspend it when the contingency happens. I am aware that it has been declared by the Supreme Court that if, at any time, the public safety should require the suspension of the powers vested by this act (meaning the judiciary act of 1789, section 14) in the courts of the United | States, it is for the Legislature to say so. That question depends upon political considerations, on which the Legislature is to decide." Upon this I remark only that the Constitution is older than the judiciary act, and yet it speaks of the privilege of the writ of habeas corpus as a thing in existence; it is in general terms, and does not speak with particular reference to powers which might or might not be granted by a future act of Congress. Besides, I take it for certain that, in the common course of legisla tion, Congress has power, at any time, to repeal the judicary act of 1789 and the act of 1833 (which grants to the courts and to the judges the power to issue the writs) without waiting for a rebellion or invasion, and a consequent pallic necessity, to justify, under the Constitution, the suspension of the privilege of the writ of habeas corpus. The court does not speak of suspending the privilege of the writ, but of suspending the powers vested in the court by the act. The power to issue a writ can hardly be called privilege; yet the right of an individual to invoke the protection of his Government in that form may well be deBigated by that name. And I should infer, with a good deal of confidence, that the Court meant to speak only of its own powers, and not of the privilege of individuals, but fr the fact that the court ascribe the power to suspend to the Legislature upon political grounds. It says "that questen dep nds upon political considerations, on which the Legislature is to decide." Now, I had supposed that question did not belong exclusively to the Legislature, because they depend upon political considerations, inasmuch as the President, in his constitutional and official duties, is quite as poutical as is the Congress, and has daily occasion in the Camon routine of affairs to determine questions upon political considerations alone. If by the phrase the suspension of the privilege of the rit of habeas corpus, we must understand a repeal of all per to issue the writ, then I freely admit that none but Congress can do it. But if we are at liberty to understand the phrase to mean, that in case of a great and dangerous rebellion like the present, the public safety requires the arrest and confinement of persons implicated in that rebellion, I as freely declare the opinion that the President be lawful power to suspend the privilege of persons arrested der such circumstances; for he is especially charged by the Constitution with the "public safety," and he is the sole jage of the emergency which requires his prompt action. | the nation. In the case of Luther vs. Borden, (commonly called the Rhode Island case,) reported in 7 Howard, page 1, the Supreme Court discussed several of the most impor tant topics treated of in this opinion, and among them the power of the President alone to decide whether the exigency exists authorizing him to call out the militia under the act of 1795. The court affirmed the power of the Presi dent in that respect, and denied the power of the court to examine and adjudge his proceedings. The opinion of the court, delivered by the learned Chief Justice Taney, declares that if the court had that power, "then it would become the duty of the court (provided that it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service of the United States, or the Government which the President was endeavoring to maintain. If (says that learned court) the judicial power extends so far, the guarantee contained in the Constitution of the United States (meaning, of course, protection against insurrection) is a guarantee of anarchy and not of order." This power in the President is no part of his ordinary duty la time of peace; it is temporary and exceptional, and was Intended only to meet a pressing emergency, when the judicary is found to be too weak to insure the public safetywhen (in the language of the act of Congress) there are ombinations too powerful to be suppressed by the ordinary of judicial proceedings, or by the powers vested in the marshals." Then and not till then, has he the lawful authority to call to his aid the military power of the nation, od with that power perform his great legal and constituduty to suppress the insurrection. And shall it be il that when he has fought and captured the insurgent wry, and has seized their secret spies and emissaries, he is bound to bring their bodies before any judge who may send whatsoever the said judge shall consider in that behalf?" & Writ of habeas corpus," to do, submit to, and receive I deny a rit, issued under such circumstances. And in making this denial I do but follow the highest judicial authority of Whatever I have said about the suspension of the privi lege of the writ of habeas corpus has been said in deference to the opinions of others, and not because I myself thought it necessary to treat of that subject at all in reference to the present posture of our national affairs. For, not doubting the power of the President to capture and hold by force insurgents in open arms against the Govern ment, and to arrest and imprison their suspected accomplices, I never thought of first suspending the writ of habeas corpus any more than I thought of first suspending the writ of replevin before seizing arms and munitions destined for the enemy. The power to do these things is in the hand of the President, placed there by the Constitution and the statute law as a sacred trust, to be used by him in his best discretion in the performance of his great first duty-to preserve, protect, and defend the Constitution. And for any breach of that trust he is responsible before the high court of im peachment, and before no other human tribunal. The powers of the President falling within this general class have been several times considered by the judiciary, and have, I believe, been uniformly sustained, without ma terially varying from the doctrines laid down in this opinion. I content myself with a simple reference to the cases, without encumbering this document, already too long, with copious extracts. (The Rhode Island case, 7 Howard, page 1; Fleming vs. Page, 9 Howard, page 615; Cross vs. Harrison, 16 Howard, page 189; the Santissima Trinidad, 7 Wheaton, page 305; Martin vs. Mott, 12 Wheaton, page 9.) To my mind it is not very important whether we call a particular power exercised by the President a peace power or a war power, for undoubtedly he is armed with both. He is the chief civil magistrate of the nation, and, being such, and because he is such, he is the constitutional commander-in-chief of the army and navy; and thus, within the limits of the Constitution, he rules in peace and commands in war, and at this moment he is in the full exercise of all the functions belonging to both these characters. The civil administration is still going on in its peaceful course, and yet we are in the midst of war-a war in which the enemy is, for the present, dominant in many States, and has his secret allies and accomplices scattered through many other States which are still loyal and true; a war all the more dangerous, and more needing jealous vigilance and prompt action, because it is an internecine and not an international war. This, sir, is my opinion, the result of my best reflections upon the questions propounded by you. Such as it is, it is submitted with all possible respect, by your obedient servant, EDWARD BATES, Attorney General. To the PRESIDENT. VIEW OF HORACE BINNEY. From his pamphlet entitled "The Privilege of the Writ of Habeas Corpus under the Constitution," pages 51, 52: In this matter of suspension of the privilege of the Writ of habeas corpus, the Constitution of the United States stands in the place of the English act of Parliament. It ordains the suspension in the conditioned cases, by the act of the competent department-as Parliament does from time to time. Neither is mandatory in suspending, but only authoritative. Each leaves discretion to the executive power. The difference is, that Parliament limits a time and provides for the effect by technical terms. The Constitution connects the suspension with the time of rebellion, and provides for the effect, as it did for the privilege, by enjoyment of it. words that comprehend the right, and deny for a season the It is further objected, that this is a most dangerous power. It is, fortunately, confined to most dangerous times. In such times the people generally are willing, and are | It was added: "The habit of declaring sympaoften compelled, to give up for a season, a portion of their thies for the enemy will not be allowed in this freedom to preserve the rest; and fortunately again, it is that portion of the people, for the most part, who like to department. Persons committing such offences live on the margin of disobedience to the laws, whose free- will be at once arrested, with a view to being dom is most in danger. The rest are rarely in want of a tried, as above stated, or sent beyond our lines into the lines of their friends. It must be distinctly understood that treason, expressed c implied, will not be tolerated in this depart habeas corpus. VIEW OF PROFESSOR THEOPHILUS PARSONS. The Boston Daily Advertiser of June 5, 1861, contained a summary of the lecture on the question raised respecting the right and power of the Executive branch of the Government to suspend the writ of habeas corpus in certain emergencies, of which this is a part: The Constitution of the United States, art. 1, sec. 9, n. 2 provides 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 many of the State constitutions have similar provisions. A fair inference from this is that the right to habeas corpus may be suspended, or, what is the same thing, martial law may be declared and exercised "in cases of rebellion or invasion, when the public safety may require it." The first and most important question is, who may decide when the exigency occurs, and who may, if it occurs, declare martial law. On this point I have myself no doubt. The clause on this subject is contained in the first article of the Constitution, and this article relates principally to Congress. Nor can there be any doubt that Congress may, when the necessity occurs, suspend the right to the writ of habeas corpus, or, which is the same thing, declare or authorize martial law. The question is, has the President this power? The Constitution does not expressly give this power to any department of Government, nor does it expressly reserve it to Congress, although, in the same article, it does make this express reservation as to some of the provisions contained in the article. This may be a mere accidental omission, but it seems to me more reasonable and more consonant with the principles of legal interpretation to infer from it an absence of intention to confine it to Congress. And I am confirmed in this opinion by the nature of the case. The very instances specified as those in which the right to habeas corpus may be suspended (invasion and rebellion) are precisely those in which the reasons for doing so may come suddenly, the necessity of determination be immediate, and a certainty exist that the suspension will be useless, and the whole mischief which the suspension might prevent take place if there be any delay. To guard against the suspension by limiting the cases, as is done, seems to me wise; to obstruct it by requiring the delay necessarily arising from legislative action would seem to be unreasonable. It is true that my construction gives to the President, in the two cases of rebellion and invasion, a vast power; but so is all military power. It is a vast power to send into a rebellious district 15,000 soldiers, as Washington did, whose duty it would be to meet the rebels, and, if necessary, kill as many as they could. But it was a power which belonged to him, of necessity, as President; and so, I think, did the power of martial law. If it did not, then, when his troops had captured the armed rebels whom they were sent to subdue, the nearest magistrate who could issue a writ of habeas corpus might have summoned the officer having them in charge to bring them before him, and might have liberated them at once to fight again, and this as often as they were captured, until a law could be passed by Con gress. If the power belongs to the President, he may exercise it at his discretion, when either invasion or rebellion occurs, subject, however, to two qualifications. One, a universal one, applicable to his exercise of every power. If he abuses it, or exercises it wrongfully, he is liable to impeachment. The other is more a matter of discretion or propriety. I suppose that he would of course report his doings in such a matter to Congress when he could, and be governed by their action. My conclusion is, therefore, that in case of invasion from abroad or rebellion at home, the President may declare, or exercise or authorize, martial law at his discretion. ARREST OF CLEMENT L. VALLANDIGHAM. Major General BURNSIDE, commanding Department of the Ohio, issued on the 13th of April, 1863, General Order No. 38, announcing that hereafter "all persons found within our lines who commit acts for the benefit of the enemies of our country will be tried as spies or traitors, and, if convicted, will suffer death." ment." 1863, May 4-Mr. VALLANDIGHAM was arrested for violation of this order-charged with "publicly expressing sympathy for those in arms against the Government of the United States, and declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion." The specification alluded to his speech on or about May 1, 1863, at Mount Vernon, O. May 16 The evidence having been heard, the Court-Brigadier General R. B. Potter presiding-found him guilty of the charge, and not guilty as to part, and guilty as to part, of the specification. He was sentenced to be placed in close confinement in some fortress of the United States, to be designated by the commanding officer of this Department, there to be kept during the continuance of the war. General BURNSIDE designated Fort Warren, Boston harbor. May 19-The PRESIDENT directed that Mr. Vallandigham be taken, under secure guard, to the headquarters of General Rosecrans, to be put by him beyond our military lines; and that, in case of his return within our lines, he be arrested and kept in close custody for the term specified in his sentence. This order was executed, but Mr. Vallandigham very soon ran the blockade at Wilmington, N. C., and went to Canada, remaining at Windsor. On the 5th of May, 1863, Mr. Vallandigham applied through counsel to Judge Leavitt, of the Circuit Court of the United States at Cincinnati, for a writ of habeas corpus, to which Gen. Burnside responded with a letter detailing the case and justifying his action. The application was argued at length, and was refused by the judge, who said that the legality of the arrest depends upon the extent of the necessity for making it, and that was to be determined by the military commander. added: He 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, neverthe less, 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 This is a copy of the order: UNITED STATES MILITARY TELEGRAPE, [Cipher.] May 19, 1863. [By telegraph from Washington, 9.40 p. m., 1863.] To Maj. Gen. BURNSIDE, Commanding Department of Ohio: SIR: The President directs that, without delay, you send C. L. Vallandigham, under secure guard, to the headquar military lines, and in case of his return within our lines he ters of General Rosecrans, to be put by him beyond our be arrested and kept in close custody for the term specified in his sentence. By order of the President: E. R. S. CANBY, Brigadier General and A. A. G. other reason than words addressed to a public meeting, in 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-tribunal, if successfully asserted, not only abrogates the 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 berty 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. CORRESPONDENCE BETWEEN NEW YORK DEMO- Letter of the Committee and Resolutions. Yours, with great regard, ERASTUS CORNING, President. JOHN R. NESSEL, Secretary. C. W. WEEKS, Secretary. Resolved, That the Constitution of the United Statesthe supreme law of the land--has defined the crime of treason against the United States to consist "only in levying war against them, or adhering to their enemies, giving them aid and comfort," and has provided that "no person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." And it further provides that "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land and naval forces, or in the militia, when in actual service in time of war or public danger;" and further, that "in all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial by an impartial jury of the State and district wherein the crime was committed." Resolved, That these safeguards of the rights of the citizen against the pretensions of arbitrary power were intended more especially for his protection in times of civil lish people, after years of protracted civil war, and were commotion. They were secured substantially to the Engadopted into our Constitution at the close of the revolu tion. They have stood the test of seventy-six years of trial, show that, while they constitute the foundation of all free under our republican system, under circumstances which government, they are the elements of the enduring stabil ity of the republic. ter, we declare, "it is the ancient and undoubted preroga Resolved, That in adopting the language of Daniel Webstive of this people to canvass public measures and the merits of public men." It is a "homebred right," a fireside privilege. It had been cujoyed in every house, cottage, and cabin in the nation. It is as undoubted as the right of breathing the air or walking on the earth. Belonging to private life as a right, it belongs to public life as a duty, and it is the last duty which those whose representatives we are shall find us to abandon. Aiming at all times to be courteous and temperate in its use, except when the right itself is questioned, we shall place ourselves on the extreme boundary of our own right and bid defiance to any arm that would move us from our ground. "This high consti- . tutional privilege we shall defend and exercise in all places -in time of peace, in time of war, and at all times. Living, we shall assert it; and should we leave no other inheritance to our children, by the blessing of God we will leave them the inheritance of free principles, and the example of a manly, independent, and constitutional defence of them." Resolved, That in the election of Governor Seymour, the people of this State, by an emphatic majority, declared their condemnation of the system of arbitrary arrests and their determination to stand by the Constitution. That the revival of this lawless system can have but one result: to di Baolutions adopted at the Meeting held in Albany, N. Y., vide and distract the North, and destroy its confidence in on the 16th day of May, 1863. Resolved, That the Democrats of New York point to their niform course of action during the two years of civil war through which we have passed, to the alacrity which they have evinced in filling the ranks of the army, to their contributions and sacrifices; as the evidence of their patriotism and devotion to the cause of our imperilled country. Never in the history of civil wars has a government been sustained with such ample resources of means and men as the people have voluntarily placed in the hands of this Administration. Resolved, That, as Democrats, we are determined to maintain this patriotic attitude, and despite of adverse and disheartening circumstances, to devote all our energies to Sustain the cause of the Union; to secure peace through victory, and to bring back the restoration of all the States under the safeguard of the Constitution. Resolved, That while we will not consent to be misapprehended upon these points, we are determined not to be misunderstood in regard to others not less essential. We demand that the Administration shall be true to the Constitution; shall recognize and maintain the rights of the States and the liberties of the citizen; shall everywhere, Outside of the lines of necessary military occupation and the scenes of insurrection, exert all its powers to maintain the supremacy of the civil over military law. Resolved, That, in view of these principles, we denounce the recent assumption of a military commander to seize and try a citizen of Ohio, Clement L. Vallandigham, for no the purposes of the Administration. That wo deprecate it Resolved, That the president, vice-presidents, and secretary of this meeting be requested to transmit a copy of these resolutions to his excellency the President of the United States, with the assurance of this meeting of their hearty stitutional and lawful measure to suppress the existing and earnest desire to support the Government in every con Albany, New York, on the 16th of the same month, was received several days ago. the elements of the enduring stability of the republic." No one denies that they have so stood the test up to the beginning of the present rebellion, if we except a certain occurrence at New Orleans; nor does any one question that they will stand the same test much longer after the rebellion closes. But these provisions of the Constitution have no application to the case we have in hand, because the arrests com The resolutions as I understand them are resolvable into two propositions-first, the expression of a purpose to sustain the cause of the Union, to secure peace through victory, and to support the Administration in every constitutional and lawful measure to suppress the rebellion; and secondly, a declaration of censure upon the Administration for supposed un-plained of were not made for treason—that is, constitutional 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. not for the treason defined in the Constitution, and upon the conviction of which the punishment is death-nor yet were they made to hold persons to answer for any capital or otherwise infamous crimes; nor were the proceedings following, in any constitutional or legal sense, "criminal prosecutions." The arrests were made on totally different grounds, and the proceedings following accorded with the grounds of the arrests. Let us consider the real case with which we are dealing, and apply to it the parts of the Constitution plainly made for such cases. Prior to my installation here it had been inAnd here I ought to close this paper, and culcated that any State had a lawful right to would close it, if there were no apprehension secede from the national Union, and that it that more injurious consequences than any would be expedient to exercise the right whenmerely personal to myself might follow the cen- ever the devotees of the doctrine should fail to sures systematically cast upon me for doing elect a President to their own liking. I was what, in my view of duty, I could not forbear. elected contrary to their liking; and, accordThe resolutions promise to support me in every ingly, so far as it was legally possible, they had constitutional and lawful measure to suppress taken seven States out of the Union, had seized the rebellion; and I have not knowingly em- many of the United States forts, and had fired ployed, nor shall knowingly employ, any other. upon the United States flag, all before I was But the meeting, by their resolutions, assert inaugurated, and, of course, before I had done and argue that certain military arrests, and any official act whatever. The rebellion thus proceedings following them, for which I am began soon ran into the present civil war; and, ultimately responsible, are unconstitutional. in certain respects, it began on very unequal I think they are not. The resolutions quote terms between the parties. The insurgents had from the Constitution the definition of trea- been preparing for it more than thirty years, son, and also the limiting safeguards and while the Government had taken no steps to reguarantees therein provided for the citizen sist them. The former had carefully considered on trials of treason, and on his being held all the means which could be turned to their to answer for capital or otherwise infa- account. It undoubtedly was a well-pondered mous crimes, and, in criminal prosecutions, reliance with them that in their own unrehis right to a speedy and public trial by an stricted efforts to destroy Union, Constitution, impartial jury. They proceed to resolve "that and law, all together, the Government would, in these safeguards of the rights of the citizen great degree, be restrained by the same Constiagainst the pretensions of arbitrary power tution and law from arresting their progress. were intended more especially for his protection Their sympathizers pervaded all departments of in times of civil commotion." And, apparently the Government and nearly all communities of to demonstrate the proposition, the resolutions the people. From this material, under cover proceed: "They were secured substantially of "liberty of speech," "liberty of the press," to the English people after years of protracted and "habeas corpus,' they hoped to keep on civil war, and were adopted into our Constitu- foot amongst us a most efficient corps of spies, tion at the close of the revolution." Would not informers, suppliers, and aiders and abettors of the demonstration have been better, if it could their cause in a thousand ways. They knew have been truly said that these safeguards had that in times such as they were inaugurating, been adopted and applied during the civil wars by the Constitution itself, the "habeas corpus and during our revolution, instead of after the might be suspended; but they also knew they one and at the close of the other? I, too, am de- had friends who would make a question as to votedly for them after civil war, and before civil who was to suspend it; meanwhile their spies war, and at all times, "except when, in cases and others might remain at large to help on of rebellion or invasion, the public safety may their cause. Or if, as has happened, the Execu require" their suspension. The resolutions tive should suspend the writ, without ruinous proceed to tell us that these safeguards "have waste of time, instances of arresting innocent stood the test of seventy-six years of trial, persons might occur, as are always likely to ocunder our republican system, under circum- cur in such cases; and then a clamor could be stances which show that while they constitute raised in regard to this, which might be, at the foundation of all free government, they are least, of some service to the insurgent cause. It needed no very keen perception to discover this | peril of his Government is discussed, cannot be part of the enemy's programme, so soon as by misunderstood. If not hindered, he is sure to open hostilities their machinery was fairly put in motion. Yet, thoroughly imbued with a reverence for the guaranteed rights of individuals, I was slow to adopt the strong measures which by degrees I have been forced to regard as being within the exceptions of the Constitution, and as indispensable to the public safety. Nothing is better known to history than that courts of justice are utterly incompetent to such cases. Civil courts are organized chiefly for trials of individuals, or, at most, a few individuals acting in concert; and this in quiet times, and on charges of crimes well defined in the law. Even in times of peace bands of horse-thieves and robbers frequently grow too numerous and powerful for ordinary courts of justice. But what comparison, in numbers, have such bands ever borne to the insurgent sympathizers even in many of the loyal States? Again, a jury 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 resolutions before me-in fact, a clear, flagrant, and gigantic case of rebellion; and the provision of the Constitution that "the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it," is the provision which specially applies to our present case. This provision plainly attests the understanding of those who made the Constitution, that ordinary courts of justice are inadequate to "cases of rebellion"-attests their purpose that, in such cases, men may be held in custody whom the courts, acting on ordinary rules, would discharge. Habeas corpus does not discharge men who are proved to be guilty of defined crirae; and its suspension is allowed by the Constitution on purpose that men may be arrested and held whe 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 help the enemy; much more, if he talks ambiguously-talks for his country with "buts" and "ifs" and "ands." Of how little value the constitutional provisions I have quoted will be rendered, if arrests shall never be made until defined crimes shall have been committed, may be illustrated by a few notable examples. General John C. Breckinridge, General Robert E. Lee, General oseph 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 mischievious interference with the raising and supplying of armies to suppress the rebellion, as where the rebellion may actually be; as well where they may restrain the enticing men out of the army, as where they would prevent mutiny in the army; equally constitutional at all places where they will conduce to the public safety, as against the dangers of rebellion or invasion. Take the peculiar case mentioned by the meeting. It is asserted, in substance, that Mr. Vallandigham was, by a military commander, seized and tried for no other reason than words addressed to a public meeting, in criticism of the course of the Administration, and in condemnation of the military orders of the general." Now, if there be no mistake about this; if this assertion is the truth and the whole truth; if there was no other reason for the arrest, then I concede that the arrest was wrong. But the arrest, as I understand, was made for a very different reason. Mr. Vallandigham avows his hostility |