War of the Rebellion: Serial 119 Page 0006 PRISONERS OF WAR AND STATE, ETC.

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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 enemy's programme so soon as by open hostilities their machinery was fairly put in motion. Yet thoroughly imbued with a reverence for the guaranteed 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 access. Civil courts are organized chiefly for the 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 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 frequently has at least one member more ready to hang the panel than to hang the traitor. And yet again h who dissuades the Union cause as much as he who kills a Union soldier to desert weakens the Union cause as much as ho 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 privilege 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 the provision 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 under 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 cannot 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 of courts and arrests in cases of rebellion do not proceed altogether upon the same basis. The former is directed at the small percentage of ordinary and continues 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 no t so much for what has ben 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 cannot 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 provisions I have quoted will be rendered if arrests shall never be made until defined crimes shall