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 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 pur,
poses 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 arrest shall never be made until
defined crimes shall have been committed, may be illustra;
ted by a few notable examples. Gen. John C. Breckinridge,
Gen. Robert E. Lee, Gen. Joseph E. Johnson, Gen. John B.
Magruder, Gen. William B. Preston, Gen. 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 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 flot unlikely
to come when I shall be blamed for having made too few
arrests rather than too many.