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contain members who would give undue sympathy to traitors.
He asserted that he could not shoot a soldier who deserted
and allow the "wily agitator" who induced him to desert go
free. He voiced his belief that certain things were con-
stitutional in times of great danger that were not constitu-
tional in times of peace. He made his case plainer by saying:

"The Constitution itself makes the distinction,
and I can no more be persuaded that the government
can constitutionally take no strong measures in time
of rebellion, because it can be shown that the same
could not be taken in time of peace, than I can be
persuaded that a particular drug is not good medicine
for a sick man because it can be shown not to be good
food for a well one. Nor am I able to appreciate
the danger apprehended by the meeting that the Amer-
ican people will, by reason of military arrests dur-
ing the rebellion, lose the right of public discuss-
ion, the liberty of speech and the press, the law of
evidence, trial by jury, and habeas corpus, through-
out the indefinite peaceful future, which I trust
lies before them, any more than I am able to believe
that a man could contract so strong an appetite for
emetics, during a temporary illness, as to persist
in feeding upon them during the remainder of his
healthful life".


Lincoln's reply did not appease his critics who claimed that he was setting up his arbitrary will as the law of the land. In Ohio the Democratic state convention, after reaffirming its devotion to the union, nominated Vallandigham for Governor, denounced the proceedings against him as a violation of the Constitution, and sent a remonstrance to Washington demanding that he be restored to his citizenship.


The Test Oath Act of 1862 is evidence of a rather significant swing from completely unfettered public discussion toward regulation. That this was only a mild swing is shown by the easy administration of the Act and that it applied only to

10. Nicolay and Hay, "Abraham Lincoln, A History", Vol. VII, pp. 347-348.

11. Act of July 2, 1862, c.128, 12 Stat. at L. 502.

members of Congress.

Chafee describes this Act and its

administration in the following passage;

"The most important of these statutes (for the exclusion of disloyal persons from public office) was enacted in July, 1862. In January of that year the Senate had decided that Stark of Oregon was entitled to take his seat, although he had made disloyal speeches. Senator Harris of New York, the Chairman of the Judiciary Committee, denied in debate that the Senate ought to be the ultimate judge of a man's fitness or was competent to reject him upon any view it might take of his moral intellectual or political capacity. It was not until the passage of the Test Oath Act, obliging men to swear before admission to office that they had never borne arms against the United States, given aid, countenance, counsel, or encouragement to the enemy, or yielded a voluntary support to any pretended government, that persons were excluded for disloyal conduct"...... "And it is noteworthy that although the terms of this statute included much more than treason, the ironclad oath was not used to bar members for personal disloyalty or passive sympathy with the rebellion, or speeches denouncing the war as an abolition war and opposing any further aid toward its prosecution. One man was excluded who had sent food to a Confederate camp, brought a gun, and pointed out a house where a Union soldier was hiding, telling the Southerners to go and get him, a clear case of treason. The most extreme case was John Young Brown, who was disqualified for a letter to the press, saying that Kentucky would not furnish a man or a dollar to aid Lincoln in his unholy war against the South, that an invading Northern army should be resisted to the death, and that any Kentuckian joining it ought to be and would be shot down before he left the state. This is the only instance of disqualification from Congress for utterances without overt acts. Thus even in the heat of the Civil War, disloyalty was not a bar to an elected member of Congress, until it was expressly made so by statute, and not then unless it was evidenced by actual aid to the enemy or words of acute virulence."

It is plain that public opinion during the Civil War had much of the same love of the freedom of public discussion that it possessed earlier in the century. In spite of the danger to the Union from the abuse of the liberty of public discussion, the public was not in favor of arbitrary measures for the protection of the state itself. What is still more significant,

in view of the recent history of the United States, is the fact

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