THE CONSTITUTION UPHELD AND MAINTAINED. / l v- S P EE CM OK HON. JAS. HARLAN, OF THE UNITiCD STATES SENATE. In this country every patriot reverences the Constitution and the laws. Every ■wanton violation of either stirs his indignatiou. As in Home the voice of the people was said to be the voice of God, so in this country the law i3 our only sovereign which all, from the President to the humblest among the toiling mil¬ lions, must implicitly obey. Whoever wantonly tramples the Constitution and the laws under his feet, is properly held to be an enemy of the people, and at war with their dearest interest. Relying on this reveience for the law of the land, the rebels of the South and their allies in the North, have sought to justify their treason, and secure a diversion in favor of their wicked purposes, by denouncing the President as a usurper and tyrant, and his administration as unconstitutional. So persistently have they pursued this course, as to convince many honest and patriotic citi¬ zens of its truth. So that many of the President’s warmest admirers, and con¬ sistent and ardent friends of the Union, justify these supposed violations of the Constitution on the ground of ‘‘ military necessity,” and the duty of the Presi¬ dent to preserve the Government. Nor will I dispute the potency of this de¬ fense of what would otherwise be the unlawful act of a nation or an individual. For the right to self-preservation is the first law of nations as well as of nature. This principle underlies every national code, and every system of legal casuistry. None are so foolish as to insist that a nation may not disregard its own laws to avoid destruction; and none except rebels steeped in crime could desire our Government to tamely submit to annihilation. But having carefully observed the administration of public affairs by Presi¬ dent Lincoln, and as carefully examined the charges of unconstitutionality pre¬ ferred against it, I fearlessly pronounce them groundless. Let us examine for a few minutes some of the gravest of these charges. CALL FOR MILITIA. 1. The rebels South and North denounce the first belligerent act of Presi¬ dent Lincoljgn-his call for some seventy-five thousand militia—as unconstitu¬ tional and tyranical. 2 Anri yet the Constitution have power “ To provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion.” (Art. 1, Sac. 8.) And Congress had, under this provision of the Constitution, ninny years before provided by law for the use of the militia by the President, whenever it might become necessary for the purposes named. And the necessity had arisen; a gigantic insurrection existed ; it had made open and flagrant actual war on the Government both by laud and sea. And the President in pursuance of his oath to execute the laws, made the call for troops to assist him. THE CONSCRIPTION. 2. The Copperheads denounce the President /or the “ conscription 77 or “draft” of soldiers to fill up the depleted ranks of our armies. And yet none will seriously deny that all able bodied male citizens, owe their services to the republic when needed for its defense, or to aid in the enforcement of its laws ; and that if they do not voluntarily spring to arms when the neces¬ sity arises, they may be compelled to serve; and that without the right to coerce the services of its citizens to aid in the common defense, and to enforce the laws, all civil government would prove a total failure. Hence sheriffs, and constables, and marshalls, in every State in the Union, when resisted in the execution of process, are authorized by law to call “ by-standers,” all in their reach, for assistance, and it is declared to be a crime to refuse the requisite aid. So it is now, and ever has beeo, and must ever continue to be^vhen the national authorities are resisted by internal or external foes. The proper ( fficers must have the right to require the aid of all the people, or abandon the Government. But if the services of all are Dot needed in aDy given case, there is no fairer mode of making the selection of the requisite number than by “casting lots,’ 7 whicn is but another name for “ Draft” or “ Conscription.” And all know that the President did not commence raising troops in this mode until Congress enacted b ws requiring it to be done. That Congress had the power to enact those laws none can dispute. For the Constitution provides that Congress shall have power “ To raise and support armies.” (Const., Art. 1, Sec. 8.) The power, therefore, is plenary—it is without restriction ; the mode of rais¬ ing them, the material, pay, government, length of service, character, age, color, and nationality, are all left to the discretion of Congress. And Congress directed that the President should call for volunteers, and if the quotas of the several States were uot thus tilled, he should select the residue from the people of the delinquent States by lot or draft. Hence, the President, so far from violating the Constitution in causing men to be drafted, hrs simply obeyed the law. And the law is in accordance with the plainest and most explicit provisions o. the Constitution. ARMING NEGROES. 3. They denounce the President for violating the Constitution in arming negroes. And yet all know that he did not do ho until Congress had enacted a law requiring this to be done. And the power of Congress to pass such a law will hardly be questioned after reading the c.ause of the Consiitution above cited, which declares that “ Congress shall have power to raise and support armies.” Hpre is no limitation. The troops raised may be black or white, red or yellow, provides in so many words that Congress shall » 3 0 and of any nationality; they may be natives or foreigners, minors or adults, slaves or owners, apprentices or masters; and so far as the question of power is concerned, may be required to serve with or without pay. Nor is this a new policy. Colored troops were employed in this country during the revolutionary *ar and the war of 1812—and have been, and are still, used by every nation on earth controlling colored citizens or subjects. If authorities were wanting to prove this, they might be piled up by the volume. But I will only mention in passing that Senator Johnson, once Attorney Geueral of the United S ates, a gentleman of great legal learning, and hereto¬ fore nut a friend of this Admiuis:ratiou—who has neglected no opportunity to reprimand it for every supposed weakness, error, or over fig at, said in a speech on the floor of the Senate at its last session— “Mr. President, a word or two more on this subject before I leave it. I have had oc casion more than once during the session to say (and that opinion I confidently entertain) that although by the laws of the States Africans are made property, they are also under the Constitution of the United States, with reference to the war power of the Govern¬ ment, to be considered as persons, and may be used as persons and brought into the field to maintain the authority of the Government to which as persons they owe allegiance. If this opinion be sound, if they are persons subject to our military control, if they are persons increasing our military power, they are for the same reasons persons under the military control of the rebels, and may increase their military power, and as such it is as much the right of the United States to take them from the rebels or to use them against the rebels, as it is to take from and use against the rebels anything else that may be used by the rebels against the United States.—( Gong . Globe. FREEDOM OF SPEECH AND OF THE PRESS. 4 th. The President is accused of having interfered with the freedom of speech and of the press. There is a difference between freedom and licentiousness. The liberty of all to acquire property does not include the right to steal and rob. Freedom of loco¬ motion does not include the right to trespass on another’s premises. Freedom to love , and to be loved , does not include the right to disturb your neighbor’s domestic happiness. So “ freedom of the press ” does not include the right to print and circulate counterfeit bank notes ; nor freedom of speech, the right to slander your neighbor, or “ to give aid and comfort ” to the public enemy in time of war. And if any one, under the pretense of a right to freedom of speech or of the press, commits treason, he may and ought to be restrained and pun¬ ished. To pretend the contrary, would indicate extreme mental obtuseness or unpardonable and criminal wickedness. if the President has in any case suppressed a newspaper, or arrested any one for words spoken, in which the parties were not intentionally and ostentatiously encouraging the rebels to continue the war, and stimulating their northern sym¬ pathizers to obstruct and embarrass the Government in its efforts to suppress the rebellion, it has never come to my knowledge. But whether he has or has not erred in any given case, in relation to the guilt or innocence of the party, is not the real question. All admit that bis intentions are pure. The real ques¬ tion is one of constitutional right to prevent publishers of uewspspers and stump speakers from committing treason—from giving aid and comfort to the public enemy. And the right to suppress a newspaper used in the interest of treason is as clear and indisputable as the right to take a dagger from the hand of the assas- siu, tools from the counterfeiter, or muskets from the bands of the rebels. The freedom of speech and of the press is not more explicitly guarantied by .the Constitution than “ the right to bear arms.” But before leaving the subject, I propose to prove, from the official record, 4 that the Copperheads themselves do not believe their own statements onthi s subject. Immediately preceding the last presidential election, Jefferson Davis offered for the consideration ot' the Senate, a series of resolutions declaratory of the principles which should control in ihe administration of the affairs of the Na¬ tional Government. When the secoud resolution of the series, which made a covert attack on the freedom ot discussion, was under consideration, I offered the following as an amendment: “But the free discussion of the morality and expediency of slavery should never be interfered with by the laws of any State or of the United' States ; and the freedom of speech nnd of the press, on this and every other subject of domestic and national policy, should be maintained inviolate in all the States.” The question being taken on this amendment, by yeas and nays, resulted yeas 20, nays 36—every Democratic Senator voting in the negative, including Blight, of Indiana, Gwinn and Latham, of California, Lane, of Oregon, Pugh, of Ohio, and Thompson, of New Jersey, all representing northern States, and all from border slave States, as well as those from the extreme South.—(Cong. Globe, 1st session, 36ih Congress, pages 1937-2321.) On the 8th of April last, when Senator Powell, of Kentucky, was denouncing the President for interfering with what he styled “freedom of speech,” I called his attention to the foregoing, reminding him that he and all hia Democratic associates in the Senate voted against free speech. He replied that the scope of the amendment would have been to send persons down South to preach insur¬ rection to their slaves. “ I would vote nay again on that resolution. I voted right.”—(Cong. Globe, 1st session, 38th Congress, page 1487.) That is, ac¬ cording to his admission, “ the freedom of speech and of the press” may be suppressed to prevent the insurrection of negroes and to preserve slavery ! Then may not its licentiousness be restrained to suppress the rebellion or wbite men, and to preserve the Government . CONFISCATION". 5th. The Copperheads denounce the administration for the confiscation of the property of rebels and the liberation of their slaves. And yet the Constitution says: “The Congress shall hate power to declare the punishment of treason.”—(Art Sec. 3.) And Congress, in pursuance of this provision provided by law, that unless these traitors should lay down their arms and return to their allegiance within a time to be fixed by the President, they should be punished by the confiscation of all their property, including slaves. And why should they uot be thus punished ? Heretofore the punishment of treason was death. This is the usual penalty for this offence in every civilized country on earth. It you may hang for treason why may you not inflict a less punishment—the logs of property \ And if you may proscribe the loss of prop¬ erty as the punishment of treason, why may you not include slave property ? Is property in slaves any more sacred than property in cattle and lands? The power conferred by the Constitution is plenary. They may declare it to be the loss of lands, cattle, mules, horses, negroes, or franchises, such as the right to vote, hold office, or bear arms. There is no limitation whatever except that the punishment declared shall not be inflicted on the children of the traitor. You shall not deprive the child of the right to vote, hold office, bear arms, or to ac¬ quire property on account of the parents treason. EMANCIPATION PROCLAMATION. 6th. The President is denounced for issuing a proclamation liberating the slaves of rebels within the rebellious districts. 5 And pray why not? We have just seen that “Congress may declare the punishment of treason :” that in pursuance of this provision of the Constitution, Congress did declare that all traitors who should not lay down their arms by a time to be fixed by the President, should forfeit all their property of “ every kind,” including slave property. The President had taken a solemn oath to take care that this and all other “laws should be faithfully executed.” Within the rebellious districts this confiscation act could not be enforced by the courts. But it was believed that if not impeded by the army and navy, it would to some ex¬ tent execute itself, that many thousands of the slaves if protected would aban¬ don their rebel masters. And to secure this result the President issued his proclamation, declaring that within the rebel districts, all persons, irrespective of their former status, should be considered and treated by the United States Government as freemen; and requiring the officers of the army and navy to recognize their right to maintain their liberty. And if it is admitted to be right to punish rebels withiu our lines by the confiscation of their property, including slaves, pray can it be wrong to do the same thing beyond our lines so far as the effort can be made effective ? . . It is objected, however, that the proclamation if enforced would liberate the slaves of Union citizens as well as of rebels. Aud it is clear that the emancipa¬ tion of slaves of Union citizens who had not aided the rebellion could not be justified under the clause of the Constitution authorizing Congress to declare the punishment of treason ; and to that extent the proclamation would be void, unless justified by the public necessities; and in that case the parties thus losing slaves would have the same right to just compensation as if other property had been taken for a similar purpose. And this would be a question for the courts to adju¬ dicate when the supremacy of the Constitution and laws shall have been restored. SUSPENSION OF THE WRIT OF HABEAS CORPUS. 7th. It is avered that the President violated the Constitution by suspending the writ of habeas corpus. , And yet the Constitution says: “ 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.”—(Constitution, Art. 1st, eeo. 9.) This is what is styled by lawyers a negative pregnant; and is equivalent to saying that “ the priviledge of the writ of habeas corpus maybe suspended when in cases of rebellion or invasion the public safety may require it.” And as a rebellion does exist, the priviledge of the writ may be properly suspended if the public safety requires it. There can be no question of the right to suspend it: the only question that can arise is, “who can judge of the necessity ?” On this question a large majority of the best legal minds of the country who have ex¬ pressed an opinion on this point, conclude that the President is the proper par¬ ty to excercise this judgment, as he is the Commander-in-Chief of the Armies and Navies of the Republic, and is at the same time the chief executive officer entrusted with the enforcement of the laws. Others, however, conclude that Congress should decide when the public safety requires its suspension. Hence, to silence cavil Congress enacted a law formally directing its suspension during the continuance of the rebellion, whenever and wherever the President might find it necessary to secure the enforcement of the law’s. And this ought to be an end of the controversy. ARBITRARY ARRESTS. 8. The President is denounced for violating the Constitution by ihe “ arbi¬ trary arrests ” of suspected parties and offenders in cases not founded on “in- formation” or “indictment,”—and for authorizing their imprisonment without a trial and convictiou by a jury. These charges are usually vindictive and malicious, and are in the first in¬ stance uttered for partizan effect,—and are doubtless repeated by the shallow minded and unreflecting under the belief that no arbitrary arrest is legal and constitutional. Nothing could be farther from the truth. Any citizen has a perfect inherent right to arrest a criminal without process and to restrain him until process can be secured. And any citizen has a right without process to arrest a party to prevent the commission of crime, and to restrain him until the danger has passed. This is done every day and every night in the great cities. Men are discovered apparently on the point of committing crime, as an assault and battery, a burglary, a robbery, or*a murder, and are seized and incarcer¬ ated or otherwise restrained of their liberty to prevent the commission of the offence. In all such cases, even in times of profound peace, it is idle to insist that the arrest must be preceded by a formal “ information” or “indictment,” or that a “jury trial” must precede an imprisonment. There would be no time for this—the delay would be fatal: instant action is necessary to prevent the crime. Such arrests are therefore not only right—but a refusal to make them would be a crime against society. The President, when convinced that persons were about to commit treason— the gravest crime known to the laws, has caused their arrest and restraint as in the case of Yallandigbam, of Ohio, and Jones, of Iowa, until the danger had passed, when they have been set at liberty. I am not here undertaking to justify any specific case of arrest made without process. Some of them may have been unnecessary, and may have worked great personal hardship. The President may not have been correctly informed, and may have erred in any given case. He could not be everywhere in per¬ son and must necessarily rely on others for information. All I claim here is that he intended to do right, and that in principle he had a perfect right to make arrests without process to prevent the commission of crime. If not, why not? We have seen ihat a private citizen may do this—yea, more, that it is his duty to do so—and a wrong akin to a crime to refuse when he has the power. May not the President do what a private citizen may do to prevent the com¬ mission of offenses ? In the case of an arbitrary arrest by a private citizen without process, if the restraint were to be protracted, the party could sue out a writ of habeas corpus , and secure his discharge by the judge of any court of competent jurisdiction. But if made by the President in times of “invasion or insurrection” he could if he deemed that the public safety required it, as we have seen suspend the privilege of this writ and retaiu the person in custody. If any doubt might otherwise exist on this point it ought to be settled in the minds of those who reverence the courts by their decisions in the case of the arrest and restraint of Yallandighain by General Burnside. While still in cus¬ tody, application was made to Judge Leavitt, of the United States Court for the Southern District of Ohio, for a writ of habeas corpus. Yallandigham was fully heard in an able and exhaustive argument, delivered by his personal and political friend, ex-Attorney General of Ohio, George E. Pugh, who for six years was a representative of the Ohio Democracy in the United States Senate, and Judge Leavitt refused to issue the writ. This was, in effect, deciding that the arrest was constitutional; tor no other question could legitimately arise than the power of the President to make the arrest without process, and the con¬ stitutionality of the restraint. In applying for this writ the party must allege that he has been illegally arrested and restrained of his liberty, setting forth the pretended grounds of restraint, if kuown. When brought before the court or ‘udge, according to the principles of the common law, the question of guilt or 7 innocence is never tried. The legality of the restraint is the only question that can be put in issue. But the judge or court would not, of course, issue the writ and bring the party before the court for a hearing unless, according to his own showing, his arrest was illegal. As Judge Leavitt refused the writ, it is, in effect, an affirmation of the legality of the restraint. Nor can this decision be justly attributed to political bias. For this judge was appointed by Presi¬ dent Jackson, many years before the existence of the Republican party, and be has never been accused or suspected during his long official career of the siighest divergence from the line of judicial rectitude. An appeal was, however, taken in the Yallandigham case to the Supreme Court of the United States, in an application for a writ of certiorari , or an or¬ der on the Judge Advocate General to send the case to the Supreme Court for re-hearing. This application was refused after a full hearing in open court. In other words, the decision of Judge Leavitt was sustained by the Supreme Court; and the question practically settled by the court of the last resort, that during a rebellion or invasion the President may legally arrest suspected per¬ sons without process, and when in his opinion the public safety requires it, may suspend the right to the use of the writ of habeas corpus, and retain them in custody until the danger has passed. This right is therefore affimed by every department of the Government, by Congress, by the President, and by the Courts. And finally the Copperhead National Convention at Chicago has stul¬ tified all that Copperhead senators, and members, and newspapers, and stump speakers, have said in denunciation of “ arbitrary arrests,” by the nomination of Major General McClellan for the Presidency, after his arbitrary arrest ” of the members of the Maryland legislature. TRIAL OF ACCUSED. 9th. But, it is demanded, “ why are not these parties put on trial ?” “ Ad¬ mitting the necessity and legality of the arrests and restraint, surely they have a right to trial by a jury of their countrymen, and to be confronted with the witnesses who testify against them.” This is more spacious than sound. In the class of arrests made to prevent the commission of crime, how would it be possible to put the parties on trial? How could you try a party for an offence not committed ? The utmost that could be demanded would be the release of the suspected parties, on giving bond and satisfactory security to keep the peace. And this has been done in every case where, in the opinion of the President, it was compatable with the public safety. But putting a party under bonds is but another mode of restraint substituted for imprisonment. It is the same in principle. The right to do the former involves the right to do the latter. In cases of arrest, after the commission of the crime, what authority has the President to try, condemn, and punish the offenders? The Constitution says: “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.”— (Article 5, Amendments to the Constitution.) Hence, the President and all his Cabinet, the Congress, and all the Courts combined, have not the constitutional power to put a man on trial for an alleged crime, except in the nature of a preliminary examination for the purpose of eliciting facts to justify restraint of the suspected party. This can be done only by a grand jury. The President has the constitutional right to arrest and re¬ strain during the continuance of the rebellion any offender, or person about to commit a crime, so long as the public safety may require it. To deny this right is to deny the validity of the Constitution. But he has no right to try in 8 the judicial sense, or to convict, condemn, or punish any one; this is the pro¬ vince of the jury, the court, and the sheriff. Nor has the President put on trial, in the judicial sense, or punished any one not in the land or naval forces. When restrained of their liberty by placing them under guard, or withiu the walls of fortifications, the confinement was not in the nature of punishment, nor considered or intended to be considered infamous. They would be liable after¬ ward as much as before such restraint to indictment aud punishment by the civil authorities. It follows, therefore, that the President has proceeded as far as he has the right under the Constitution, and not one hairs-breadth farther. The “ Copper¬ heads condemn him as a violator of the Constitution for doing what the Con- stitution clearly authorizes ; and condemn him for not doing what the Consti¬ tution as clearly prohibits.” But it is needless to pursue this subject. All these cavils and charges of un- constitutionality are as empty as the wind. They are without a decent pretext. They all vanish under a candid, impartial analysis. No one can carefully ex¬ amine them and avoid the conclusion that the measures of the existing Admin¬ istration are in strict accordance with the Constitution and laws. I therefore conclude with the declaration that, in my opinion, a more pure- minded, disinterested, self-sacrificing, generous, humane, patriotic, laborious, and God-fearing man never administered the affairs of a great nation than Abraham Lincoln. And that no living man, whose name has been mentioned in that connection, could be more safely trusted .in the presidential office for the next four years. And that no one more richly deserves the second office in the gitt of the American people than Andrew Johnson, of Tennessee. And that if all who believe as I do perform their duty resolutely and faithfully, their triumphant election is as certain as the succession of day and night. PRESIDENTIAL CAMPAIGN OF 1864. UNION CONGRESSIONAL COMMITTEE. Hon. E. D. MORGAN, of New York. “ JAS. HARLAN, of Iowa. “ L. M. MORRILL, of Maine. (Senate.) E. D. MORGAN, Chairman. Hon. E. B. WASHBURNE, of Illinois. “ R. B. VAN YALKENBURG, N. Y. “ J. A. GARFIELD, of Ohio. “ J. G. BLAINE, of Maine. House o f Representatives. JAS. HARLAN, Treasurer. D. N. COOLEY, Sec’y. Committee Rooms, Washington , D. C. t Sep. 2, 1864. Dear Sir: The Union Congressional Committee, in addition to the documents already published, propose to issue immediately the following documents for dis¬ tribution among the people: 1. McClellan’s Military Career Reviewed and Exposed. 2. George H. Pendleton, his Disloyal Record and Antecedents. 3. The Chicago Copperhead Convention, the men who composed and controlled it. 4. Base surrender of the Copperheads to the Rebels in arms. 6. The Military and Naval Situation, and the Glorious Achievements of oar Sol¬ diers and Sailors. 6. A Few Plain Words with the Private Soldier. 7. What Lincoln’s Administration has done. 8. The History of MoClellan’s “Arbitrary Arrest” of the Maryland Legislature. 9. Can the Country Pay the Expenses of the War? 10. Doctrines of the Copperheads North identical with those of the Rebels South. 11. The Constitution Upheld and Maintained. 12. Rebel Terms of Peace. 13. Peace to be Enduring, must be Conquered. 14. A History of Cruelties and Atrocities of the Rebellion. 15. Evidences of a Copperhead Conspiracy in the Northwest. Printed by L. Towers for the Union Congressional Committee.