the writings-6-第49节
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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 casesthey 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 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 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 were no other reason for the arrest; then I
concede that the arrest was wrong。 But the arrest; as I understand;
was made for a very different reason。 Mr。 Vallandigham avows his
hostility to the war on the part of the Union; and his arrest was
made because he was laboring; with some effect; to prevent the
raising of troops; to encourage desertions from the army; and to
leave the rebellion without an adequate military force to suppress
it。 He was not arrested because he was damaging the political
prospects of the administration or the personal interests of the
commanding general; but because he was damaging the army; upon the
existence and vigor of which the life of the nation depends。 He was
warring upon the military; and thus gave the military constitutional
jurisdiction to lay hands upon him。 If Mr。 Vallandigham was not
damaging the military power of the country; then his arrest was made
on mistake of fact; which I would be glad to correct on reasonably
satisfactory evidence。
I understand the meeting whose resolutions I am considering to be in
favor of suppressing the rebellion by military forceby armies。
Long experience has shown that armies cannot be maintained unless
desertion shall be punished by the severe penalty of death。 The case
requires; and the law and the Constitution sanction; this punishment。
Must I shoot a simple…minded soldier boy who deserts while I must
not touch a hair of a wily agitator who induced 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 absence of rebellion or
invasion; the public 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 times of profound peace and public security。 The
Constitution itself makes the distinction; and I can no more be
persuaded that the government can constitutionally take no strong
measures in time of rebellion; because it can be shown that the same
could not be lawfully taken in times of peace; than I can be
persuaded that a particular drug is not good medicine for a sick man
because it can be shown to not be good food for a well one。 Nor am I
able to appreciate the danger apprehended by the meeting; that the
American people will by means of military arrests during the
rebellion lose the right of public discussion; the liberty of speech
and the press; the law of evidence; trial by jury; and habeas corpus
throughout the indefinite peaceful future which I trust lies before
them; any more than I am able to believe that a man could contract so
strong an appetite for emetics during temporary illness as to persist
in feeding upon them 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 upon a
level one step higher than any party platform; because I am sure that
from such more elevated position we could do better battle for the
country we all love than we possibly can from those lower ones where;
from the force of habit; the prejudices of the past; and selfish
hopes of the future; we are sure to expend much of our ingenuity and
strength in finding fault with and aiming blows at each other。 But
since you have denied me this I will yet be thankful for the
country's sake that not all Democrats have done so。 He on whose
discretionary judgment Mr。 Vallandigham was arrested and tried 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。 Vallandigham; while I have not heard of a single one condemning
it。 I cannot assert that there are none such。 And the name of
President Jackson recalls an instance 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 that
the war was over; the clamor against martial law; which had existed
from the first; grew more furious。 Among other things; a Mr。
Louaillier published a denunciatory newspaper article。 General
Jackson arrested him。 A lawyer by the name of Morel procured the
United States Judge Hall to order a writ of habeas corpus to release
Mr。 Louaillier。 General Jackson arrested both the lawyer and the
judge。 A Mr。 Hollander ventured to say of some part of the matter
that 〃it was a dirty trick。〃 General Jackson arrested him。 When the
officer undertook to serve the writ of habeas corpus; General Jackson
took it from him; and sent him away with a copy。 Holding the judge
in custody a few days; the general sent him beyond the limits of his
encampment; and set him at liberty with an order to remain till the
ratification of peace should be regularly announced; or until the
British should have left the southern coast。 A day or two more
elapsed; the ratification of the treaty of peace was regularly
announced; and the judge and others were fully liberated。 A few days
more; and the judge called General Jackson into court and fined him
1000 for having arrested him and the others named。 The General
paid the fine; and then the matter rested for nearly thirty years;
when Congress refunded principal and interest。 The late Senator
Douglas; then in the House of Representatives; took a leading part in
the debates; in which the constitutional question was much discussed。
I am not prepared to say whom the journals would show to have voted
for the measure。
It may be remarkedfirst; that we had the same Constitution then as
now; se