#39 on the list of 150 Most Teachable Lincoln Documents
“The man who stands by and says nothing, when the peril of his government is discussed, can not be misunderstood.”
On This Date
HD Daily Report, June 12, 1863
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How Historians Interpret
“. . .By midsummer of 1863 it was desperately important that the administration’s policies should be understood. On no issue was this need so great as on the abrogation of civil liberties. Curtailment of the freedom of speech and of the press, arrests of dissenters and the disloyal—always called ‘arbitrary arrests’ by his opponents—and, above all, suspension of the privilege of the writ of habeas corpus deeply troubled many Americans. Of course, the Peace Democrats vigorously protested against these measures, and, after the arrest and trial of Vallandigham, many of the War Democrats joined them. . .Aware of the widespread public unhappiness, Lincoln grew restive at remaining a prisoner of the White House. For a time he considered attending a huge July 4 celebration planned for Philadelphia, where he could for the first time since his inauguration have a chance to speak directly to the public, but Lee’s impending invasion of Pennsylvania put an end to that idea. The favorable reception of his public letters to friends of the Union cause in Manchester and London suggested another way he could explain to the people why he had found it necessary to suspend the writ of habeas corpus. As ideas came to him that ‘seemed to have force and make perfect answer to some of the things that were said and written’ about his actions, he jotted them down on scraps of paper and put them in a drawer. When the appropriate time came, he could put together these disconnected thoughts in a public letter. The protest of a group of New York Democrats against the arrest of Vallandigham gave him the opportunity for which he had been waiting.”
–David Herbert Donald, Lincoln (New York: Simon & Schuster, 1995), pp. 441-442
“Some of Lincoln’s arguments were logically and constitutionally weak, especially his contention that anyone ‘who stands by and says nothing, when the peril of his government is discussed . . . is sure to help the enemy.’ The New York World with some justice asked: ‘Was anything so extraordinary ever before uttered by the chief magistrate of a free country? Men are torn from their home and immured in bastilles for the shocking crime of silence!’ Still, the Corning letter’s homey rhetoric succeeded in allaying many public doubts. George William Curtis called it ‘altogether excellent’ and said the president’s timing was ‘another instance of his remarkable sagacity.’ Nicolay and Hay noted that few of Lincoln’s state papers ‘produced a stronger impression upon the public mind.’”
–Michael Burlingame, Abraham Lincoln: A Life (2 volumes, originally published by Johns Hopkins University Press, 2008) Unedited Manuscript By Chapters, Lincoln Studies Center, Volume 2, Chapter 30 (PDF), pp. 3313-3314
“The apologetic tone taken by James G. Randall and other writers on the problem of arbitrary arrests in the North during the Civil War has always seemed to me to be curiously at odds with the tone Abraham Lincoln himself took. He did not apologize. In his public letter of June 12, 1863, to Erastus Corning and others, Lincoln said with characteristic toughness: ‘… the time [is] not unlikely to come when I shall be blamed for having made too few arrests rather than too many.’ He argued that the Confederate States, when they seceded, had been counting on being able to keep ‘on foot amongst us a most efficient corps of spies, informers, supplyers, and aiders and abettors of their cause’ under ‘cover of ‘Liberty of speech’ ‘Liberty of the press’ and ‘Habeas corpus.” Nicolay and Hay, who were not given to overstatement, noted that ‘few of the President’s state papers … produced a stronger impression upon the public mind than this’. . . As most students of the Lincoln administration’s racial policies agree, a historian must pay careful attention not only to what Lincoln said but also to what he actually did. The administration’s statistical record on arbitrary arrests is persuasive testimony that Lincoln was not particularly embarrassed by the policy. No careful work on the numbers of civilians arrested by military authorities or for reasons of state has ever been done by a historian, and those historians who have attempted an estimate previously have been writing with the goal of defending Lincoln in mind. Even so, the lowest estimate is 13,535 arrests from February 15, 1862, to the end of the war. At least 866 others occurred from the beginning of the war until February 15, 1862. Therefore, at least 14,401 civilians were arrested by the Lincoln administration. If one takes the population of the North during the Civil War as 22.5 million (using the 1860 census and counting West Virginia but not Nevada), then one person out of every 1,563 in the North was arrested during the Civil War.”
–Mark E. Neely, Jr., “The Lincoln Administration and Arbitrary Arrests: A Reconsideration,” Journal of the Abraham Lincoln Association 5.1 (1983)
NOTE TO READERS
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…Prior to my instalation 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 inaugerated; and, of course, before I had done any official act whatever. The rebellion, thus began 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 pervaded 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, supplyers, and aiders and abettors of their cause in a thousand ways. They knew that in times such as they were inaugerating, 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’ programme, so soon as by open hostilities their machinery was fairly put in motion. Yet, thoroughly imbued with a reverence for the guarranteed 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 have 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 previlege 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 theprovision 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 case—a case of Rebellion, wherein the public Safety does require the suspension. Indeed, arrests by process ofcourts, and arrests in cases of rebellion, do not proceed altogether upon the same basis. The former is directed at the small per centage 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, can not be misunderstood. 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. Gen. John C. Breckienridge, Gen. Robert E. Lee, Gen. Joseph E. Johnston, Gen. John B. Magruder, Gen. William B. Preston, Gen. Simon B. Buckner, and Comodore [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” In asmuch, 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. They assert [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 that 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 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 this 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 can not 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 wiley agitator who induces 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 feeling, till he is persuaded to write the soldier boy, that he is fighting in a bad cause, for a wicked administration of a contemptable government, too weak to arrestand 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 it’s 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 measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time 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 through the remainder of his healthful life….