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 has 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 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 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 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 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, 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 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.