The Case of Clement L. Vallandigham

Former Congressman Clement L. Vallandigham had been an outspoken opponent of President Abraham 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 after Republicans had redrawn his district’s boundaries.

On May 1, a party rally was held at Mount Vernon. Spectators waved flags from hickory posts in reference to the “Jacksonian Democracy” of former President Andrew Jackson, and a float was pulled through the crowd that featured 34 girls representing each of the 34 states. One of the rally’s highlights was a speech that Vallandigham was to deliver, in response to the recently enacted Military Order Number 38. This order prohibited anyone from publicly speaking out against the war. Vallandigham attempted to test that order at this rally.

The former congressman asserted that peace with the South could be negotiated, but Lincoln and the 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 to support the conflict, western states might secede and rejoin the South.

Major-General Ambrose E. Burnside, commander of the Federal Department of the Ohio and author of Order Number 38, had sent two officers to listen and take notes on Vallandigham’s speech. When these notes were brought to Burnside’s Cincinnati headquarters, Burnside decided that his order had been violated. Without consulting anyone, he directed his aide-de-camp to take a company of Federal soldiers aboard a special train and arrest Vallandigham at his Dayton home.

The troops pounded on Vallandigham’s door in the predawn hours of May 5. Vallandigham hollered down from an upstairs window asking what they wanted, and they demanded that he open the door. He instead began yelling the cry for anti-war Democrats, prompting the soldiers to use their muskets to break down his door. Vallandigham was seized in his bed clothes amidst the screams of his wife and sister-in-law. He was dragged to a waiting railcar, which took him to Cincinnati, where he was put in jail.

Meanwhile, an angry pro-Vallandigham mob broke into the offices of a Republican newspaper in Dayton and started a fire that burned several nearby businesses that had no stake in this dispute. Vallandigham issued a statement from his jail cell. He condemned Burnside and declared, “I am here in a military bastille for no other offense than my political opinions.”

Vallandigham appeared before a military tribunal organized by Burnside on the 6th, where he was accused of violating Order Number 38. 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. The tribunal 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 lawyer representing the former congressman tried to get the U.S. Circuit Court to issue a writ of habeas corpus, but the court refused to get involved in the matter.

The commissioners convicted Vallandigham the next day, but they were reluctant to execute him by firing squad. They ultimately recommended confining him “in some fortress of the United States” for two years or “during the continuance of the war.” Burnside approved the sentence and directed that Vallandigham be sent to Fort Warren, Massachusetts. He declared that speeches such as Vallandigham’s were “weakening the power of the Government (to put down) an unlawful rebellion.”

Burnside was naively unaware that his action would spark mass outrage, make Vallandigham a martyr, and force President Lincoln to intervene.


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