May 19, 1863 – President Abraham Lincoln directed Secretary of War Edwin M. Stanton to banish former Congressman Clement L. Vallandigham to the South for voicing anti-war views that the administration considered dangerous.
Vallandigham had been an outspoken opponent of Lincoln and the war since the conflict began. He was a prominent leader of the “Peace” Democrats, or “Copperheads,” in Ohio, where he had narrowly lost his congressional seat due to Republicans redrawing his district’s boundaries.
On May 1, Vallandigham delivered a speech to thousands of spectators at a party rally in Mount Vernon. He asserted that peace with the South could be negotiated, but Lincoln and his Republican Party refused to negotiate. This, Vallandigham said, was because they no longer sought to preserve the Union, but rather to free slaves and enslave whites by destroying civil liberties.
Vallandigham declared that the war would end only if soldiers began deserting in droves and the people hurled “King Lincoln from his throne.” He warned pro-war New Englanders that if they continued supporting the conflict, western states might secede and rejoin the South.
Major General Ambrose E. Burnside, commanding the Federal Department of the Ohio, had sent two staff members to listen to Vallandigham’s speech. After receiving their report on what the former congressman said, Burnside directed his aide-de-camp to take a company of Federal soldiers aboard a special train and arrest Vallandigham at his Dayton home.
At 2:30 a.m. on the 5th, the troops broke down Vallandigham’s door and pulled him out of bed amidst the screams of his wife and sister-in-law. The Federals dragged Vallandigham to the waiting railcar, which took him to Burnside’s headquarters at Cincinnati, where he was jailed.
The Federals charged Vallandigham with violating Burnside’s General Order No. 38, issued on April 13. The order stated that “the habit of declaring sympathy for the enemy will not be allowed in this department,” and anyone committing such “treason, expressed or implied,” would be seized and brought before a military tribunal.
Burnside claimed he had the authority to enforce this order based on Lincoln’s suspension of habeas corpus last September, under which anyone expressing “disloyalty” or discouraging support for the war effort could be subject to military trial, regardless of the constitutionally protected freedoms of speech and expression.
A military commission assembled on May 6 and tried Vallandigham for:
“Publicly expressing, in violation of General Orders No. 38, from Head-quarters Department of the Ohio, sympathy for those in arms against the Government of the United States, and declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion.”
According to witnesses’ testimony–
“… he addressed a large meeting of citizens at Mount Vernon, and did utter sentiments in words, or in effect, as follows: declaring the present war ‘a wicked, cruel, and unnecessary war’; ‘a war not being waged for the preservation of the Union’; ‘a war for the purpose of crushing out liberty and creating a despotism’; ‘a war for the freedom of the blacks and the enslavement of the whites’; stating that, ‘if the Administration had so wished, the war could have been honorably terminated months ago’; characterizing the (Burnside’s) military order ‘as a base usurpation of arbitrary authority’; declaring ‘that he was at all times and upon all occasions resolved to do what he could to defeat the attempts now made to build up a monarchy upon the ruins of our free government.’”
Vallandigham refused to enter a plea, arguing that a military tribunal had no authority where civilian courts functioned. The commissioners convicted Vallandigham the next day, but they expressed reluctance to execute him by firing squad. They ultimately recommended sending him to confinement at Fort Warren, Massachusetts, for two years or “during the continuance of the war.” Burnside approved the sentence, declaring that speeches such as Vallandigham’s were “weakening the power of the Government (to put down) an unlawful rebellion.”
Vallandigham’s conviction sparked protests throughout the North. Democrats and even some Republicans expressed outrage that someone could be thrown in prison for simply delivering a speech, and nearly every member of President Lincoln’s cabinet opposed the action. Nevertheless, Lincoln gave Burnside his “kind assurance of support” after learning of Vallandigham’s conviction in a newspaper.
When the Chicago Times backed Vallandigham and attacked the Lincoln administration, Burnside closed the newspaper down. An outraged mob burned the office of the Dayton Journal, the Republican newspaper in Vallandigham’s home town.
The pro-Democrat New York Atlas declared that “the tyranny of military despotism” displayed by Vallandigham’s conviction proved “the weakness, folly, oppression, mismanagement, and general wickedness of the (administration).” The New York Herald feared this was only the first of “a series of fatal steps which must terminate at last in bloody anarchy.”
Another Democrat noted that Vallandigham’s vocal opposition to the war was mild compared to then-Congressman Lincoln’s blistering speech in the House of Representatives condemning President James K. Polk and the Mexican War in 1849. New York Governor Horatio Seymour, a prominent pro-war Democrat whose support the Lincoln administration needed, issued a statement on the incident:
“The transaction involved a series of offenses against our most sacred rights. It interfered with the freedom of speech; it violated our rights to be secure in our homes against unreasonable searches and seizures; it pronounced sentence without a trial, save one which was a mockery, which insulted as well as wronged. The perpetrators now seek to impose punishment, not for an offense against law, but for a disregard of an invalid order, put forth in utter violation of the principles of civil liberty.
“If this proceeding is approved by the Government and sanctioned by the people, it is not merely a step toward revolution, it is revolution; it will not only lead to military despotism, it establishes military despotism. If it is upheld, our liberties are overthrown. The safety of our persons, the security of our property, will hereafter depend upon the arbitrary wills of such military rulers as may be placed over us, while our constitutional guarantees will be broken down. Even now the Governors and the courts of some of the great Western States have sunk into insignificance before the despotic powers claimed and exercised by military men who have been sent into their borders.”
Losing Seymour seriously jeopardized the administration’s hopes for a political alliance between Republicans and War Democrats.
On the 16th, a protest meeting took place in Albany, New York, headed by New York Central Railroad President Erastus Corning. The attendees consisted mostly of state Democrats supportive of Governor Seymour, and they adopted resolutions calling Vallandigham’s conviction a “blow… against the spirit of our laws and Constitution,” and the end of “the liberty of speech and of the press, the right of trial by jury, the law of evidence, and the privilege of habeas corpus.” The resolutions stated that upholding the conviction would be “a fatal blow at the supremacy of law, and the authority of the State and Federal Constitutions.”
Vallandigham’s arrest and conviction raised serious questions about whether a civilian could be seized by military force for giving a speech, and whether a military court could override a civilian court by trying and convicting said civilian. Former Senator George H. Pugh of Ohio applied for a writ of habeas corpus on Vallandigham’s behalf, but Judge Humphrey H. Leavitt of the U.S. Circuit Court for the Southern District of Ohio denied it. Citing the law passed by Congress on March 3 authorizing the president to suspend habeas corpus, Leavitt ruled that the president’s war powers included arresting Vallandigham for incendiary speech and subjecting him to military trial.
Lincoln recognized the political problem of such a harsh punishment, and so he sought a compromise by publicly supporting Vallandigham’s arrest but commuting his sentence. Lincoln ordered the former congressman banished to the Confederacy, and he also directed Secretary of War Stanton to reopen the Chicago Times. Federal cavalry soon escorted Vallandigham to Tennessee and handed him over to Confederate officials, who were reluctant to take him.
Meanwhile, protests continued throughout the month. Petitions condemning the “arbitrary arrest, illegal trial, and inhuman imprisonment of Hon. C.L. Vallandigham” circulated in Ohio. New Jersey Governor Joel Parker told an audience in Newark that the conviction and deportation “were arbitrary and illegal acts. The whole proceeding was wrong in principle and dangerous in its tendency.” Indiana Governor Oliver P. Morton, a Republican and Lincoln ally, alleged that the president’s actions emboldened Copperheads in his state. Despite such mass indignation, Lincoln refused Burnside’s offer to resign.
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