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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

hereafter to be mentioned; nor does any one question that they will

stand the same test much longer after the rebellion closes。  But

these provisions of the Constitution have no application to the case

we have in hand; because the arrests complained of were not made for

treasonthat is; not for the treason defined in the Constitution;

and upon the conviction of which the punishment is deathnor 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 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 whatever。  The rebellion thus begun soon

ran into the present civil war; and; in certain respects; it began on

very unequal terms between the parties。  The insurgents had been

preparing for it 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

effort to destroy Union; Constitution and law; all together; the

government would; in great degree; be restrained by the same

Constitution and law from arresting their progress。  Their

sympathizers invaded all departments of the government and nearly all

communities of the people。  From this material; under cover of

〃liberty of speech;〃 〃liberty of the press;〃 and 〃habeas corpus;〃

they hoped to keep on foot amongst us a most efficient corps of

spies; informers; suppliers; and aiders and abettors of their cause

in a thousand ways。  They knew that in times such as they were

inaugurating; by the Constitution itself the 〃habeas corpus〃 might be

suspended; but they also knew they had friends who would make a

question as to who was to suspend it; meanwhile their spies and

others might remain at large to help on their cause。  Or if; as has

happened; the Executive should suspend the writ without ruinous waste

of time; instances of arresting innocent persons might occur; as are

always likely to occur in such cases; and then a clamor could be

raised in regard to this; which might be at least of some service to

the insurgent cause。  It needed no very keen perception to discover

this part of the enemies program; so soon as by open hostilities

their machinery was fairly put in motion。  Yet; thoroughly imbued

with a reverence for the guaranteed rights of individuals; I was slow

to adopt the strong measures which by degrees I have been forced to

regard as being within the exceptions of the Constitution; and as

indispensable to the public safety。  Nothing is better known to

history than that courts of justice are utterly incompetent to such

cases。  Civil courts are organized chiefly for 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 rebellionso called by the resolutions before me

in fact; a clear; flagrant; and gigantic case of rebellion; and the

provision of the Constitution that 〃the privilege of the writ of

habeas corpus shall not be suspended unless when; in cases of

rebellion or invasion; the public safety may require it;〃 is the

provision which specially applies to our present case。  This

provision plainly attests the understanding of those who made the

Constitution that ordinary courts of justice are inadequate to 〃cases

of rebellion〃attests their purpose that; in such cases; men may be

held in custody whom the courts; acting on ordinary rules; would

discharge。  Habeas corpus does not discharge men who are proved to be

guilty of defined crime; and its suspension is allowed by the

Constitution on purpose that men may be arrested and held who can not

be proved to be guilty of defined crime; 〃when; in cases of rebellion

or invasion; the public safety may require it。〃



This is precisely our present casea case of rebellion wherein the

public safety does require the suspensionIndeed; 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

ambiguouslytalks for his country with 〃buts;〃 and 〃ifs;〃 and

〃ands。〃 Of how little value the constitutional provision I have

quoted will be rendered if arrests shall never be made until defined

crimes shall have been committed; may be illustrated by a few notable

examples: General John C。 Breckinridge; General Robert E。 Lee;

General Joseph E。 Johnston; General John B。 Magruder; 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 had 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 res

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