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 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 whatever 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 practice a general directory and revisory power in the matter.
