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, 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 Of course, I must practise a general directory and revisory power in the matter.

case.

"One of the resolutions expresses the opinion of the meeting that arbitrary arrests will have the effect to divide and distract those who should be united in suppressing the rebellion, and I am specifically called on to discharge Mr. Vallandigham. I regard this as, at least, a fair appeal to me on the expediency of exercising a constitutional power

which I think exists. In response to such appeal I have to say, it gave me pain when I learned that Mr. Vallandigham had been arrested (that is, I was pained that there should have seemed to be a necessity for arresting him), and that it will afford me great pleasure to discharge him as soon as I can by any means believe the public safety will not suffer by it. I further say, that as the war progresses, it appears to me, opinion and action, which were in great confusion at first, take shape and fall into more regular channels, so that the necessity for strong dealing with them gradually decreases. I have every reason to desire that it should cease altogether, and far from the least is my regard for the opinions and wishes of those who, like the meeting at Albany, declare their purpose to sustain the government in every constitutional and lawful measure to suppress the rebellion. Still, I must continue to do so much as may seem to be required by the public safety."

This letter to Erastus Corning, and others, June 12, 1863, contains Lincoln's defense not alone for the arrest of Vallandigham, but for that of every other person arrested in like manner, or for like reason, during the war. On June 3d, General Burnside suppressed the Chicago Times because of its "repeated expression of disloyal and incendiary sentiments." The president rescinded the order. Public sentiment in Chicago was unanimous in request of this, and reflected the general sentiment of the North. The zealously loyal portion of the North strongly approved the president's treatment of Vallandigham, and the arrest of men who publicly expressed "secesh" sentiments, whether at public meetings or through newspapers-as General Burnside accused the Chicago Times of doing, and also the New York World. Now, in these piping times of peace, the historian of the war, calmly weighing Lincoln's course, must consider the responsibility which lay upon him. Writers who delight in the equities of human conduct and who demand their observance at all times, and who construe right civil procedure wholly by precedent and the letter of the

Constitution, censure Lincoln for the arrest of Vallandigham and also for other and less notorious arrests. The historian looks backward; Lincoln was compelled to act amidst gravest perils to the Nation. He did not defend his course, in the case of Vallandigham, as the course he would prefer, but as the exceptional course which the public safety required-just as the war itself was the exceptional course for the preservation of the Union. The issue is a very old one: When shall military procedure supersede civil procedure? The Confederacy, the Rebellion, tested by the principles of nationality, was unconstitutional; and the Confederacy declared that the attempt of the Nation to suppress rebellion was unconstitutional; so the emancipation proclamation was unconstitutional, and as was asserted, military arrests like Vallandigham's were unconstitutional. As Lincoln said on another occasion, some would have the world believe that it was unconstitutional to attempt to maintain the Constitution. Government in the United States rests fundamentally on civil concepts-but in a final test, these concepts define themselves according to the will of the majority. In exerting this will, the process may be civil or military. The period of the Civil War was not wholly a period when the definition was working itself out by civil process. The state of mind of the American people was changing, and extraordinary and exceptional procedure, such as that typified in the arrest of Vallandigham, was an incident of that change. Testing Lincoln's conduct and responsibility for this and other arbitrary arrests at the North during the war by the tests which alone can be applied to a man for his acts-the motive and the law-there can be but one just conclusion, that to maintain the Union, to protect and defend that entity and organism, the Nation, was his motive and that the final law in such cases-exceptional as he himself admitted them to be cannot be the letter of the law, but its spirit and purpose. If violence was done to the Constitution by Lincoln's act, the responsibility rests upon those who at the time of the act were imperilling