If not hindered, he is sure to 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 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 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 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 force--by 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.
