THE VALLANDIGHAM CASE--THE HOLMES COUNTY WAR
Clement L. Vallandigham--His opposition to the war--His theory of
reconstruction--His Mount Vernon speech--His arrest--Sent before the
military commission--General Potter its president--Counsel for the
prisoner--The line of defence--The judgment--Habeas Corpus
proceedings--Circuit Court of the United States--Judge Leavitt
denies the release--Commutation by the President--Sent beyond the
lines--Conduct of Confederate authorities--Vallandigham in
Canada--Candidate for Governor--Political results--Martial
law--Principles underlying it--Practical application--The intent to
aid the public enemy--The intent to defeat the draft--Armed
resistance to arrest of deserters, Noble County--To the enrolment in
Holmes County--A real insurrection--Connection of these with
Vallandigham's speeches--The Supreme Court refuses to
interfere--Action in the Milligan case after the war--Judge Davis's
personal views--Knights of the Golden Circle--The Holmes County
outbreak--Its suppression--Letter to Judge Welker.
Clement L. Vallandigham had been representative in Congress of the
Montgomery County district of Ohio, and lived at Dayton. He was a
man of intense and saturnine character, belligerent and denunciatory
in his political speeches, and extreme in his views. He was the
leader in Ohio of the ultra element of opposition to the
administration of Mr. Lincoln, and a bitter opponent of the war. He
would have prevented the secession of the Southern States by
yielding all they demanded, for he agreed with them in thinking that
their demands for the recognition of the constitutional
inviolability of the slave system were just. After the war began he
still advocated peace at any price, and vehemently opposed every
effort to subdue the rebellion. To his mind the war was absolutely
unconstitutional on the part of the national government, and he
denounced it as tyranny and usurpation. His theory seemed to be that
if the South were "let alone," a reconstruction of the Union could
be satisfactorily effected by squelching the anti-slavery agitation,
and that the Western States, at any rate, would find their true
interest in uniting with the South, even if the other Northern
States should refuse to do so. Beyond all question he answered to
the old description of a "Northern man with Southern principles,"
and his violence of temper made it all a matter of personal hatred
with him in his opposition to the leaders of the party in power at
the North. His denunciations were the most extreme, and his
expressions of contempt and ill-will were wholly unbridled. He
claimed, of course, that he kept within the limits of a
"constitutional opposition," because he did not, in terms, advise
his hearers to combine in armed opposition to the government.
About the first of May he addressed a public meeting at Mount Vernon
in central Ohio, where, in addition to his diatribes against the
Lincoln administration, he denounced Order No. 38, and Burnside as
its author. His words were noted down in short-hand by a captain of
volunteers who was there on leave of absence from the army, and the
report was corroborated by other reputable witnesses. He charged the
administration with designing to erect a despotism, with refusing to
restore the Union when it might be done, with carrying on the war
for the liberation of the blacks and the enslavement of the whites.
He declared that the provost-marshals for the congressional
districts were intended to restrict the liberties of the people;
that courts-martial had already usurped power to try citizens
contrary to law; that he himself would never submit to the orders of
a military dictator, and such were Burnside and his subordinates;
that if those in authority were allowed to accomplish their
purposes, the people would be deprived of their liberties and a
monarchy established. Such and like expressions, varied by
"trampling under his feet" Order No. 38, etc., made the staple of
his incendiary speech.
When the report was made to Burnside and he had satisfied himself of
its substantial truth, he promptly accepted the challenge to test
the legality of his order, and directed the arrest of Mr.
Vallandigham. It was characteristic of him that he did not consult
with his subordinates or with lawyers. He did not even act through
my district organization, but sent his own aide-de-camp with a guard
to make the arrest at Dayton. My recollection is that I did not know
of the purpose till it was accomplished. His reason for direct
action, no doubt, was that if there were many links in the chain of
routine, there were multiplied chances of failure. He did not want
to be baffled in the arrest, or to give the opportunity for raising
a mob, which there would be if his purposes were to become known in
advance,
The arrest was made in the early morning of the 5th of May, before
dawn, and the prisoner was brought to Cincinnati. He was at first
taken under guard to the Burnet House, where he breakfasted, and was
then put in the military prison connected with the houses used as
barracks for the troops in the city. A military commission had been
ordered on the 21st of April from Department Headquarters for the
trial of the classes of offenders named in Order No. 38, and of this
commission Brigadier-General R. B. Potter of the Ninth Corps was
President. General Potter was a distinguished officer throughout the
war. He was a brother of Clarkson N. Potter, the prominent lawyer
and Democratic member of Congress later, and both were sons of the
Episcopal Bishop Potter of Pennsylvania. The character of the whole
court was very high for intelligence and standing. Before this court
Mr. Vallandigham was arraigned on the charge of publicly expressing
sympathy with those in arms against the government, and uttering
disloyal sentiments and opinions with intent to weaken the power of
the government in its efforts to suppress the rebellion.
Vallandigham consulted with the Hon. George E. Pugh and others as
his counsel, and then adopted the course of protesting against the
jurisdiction of the court and against the authority for his arrest.
His grounds were that he was not amenable to any military
jurisdiction, and that his public speech did not constitute an
offence known to the Constitution and laws. To avoid the appearance
of waiving the question of jurisdiction, his counsel did not appear,
though offered the opportunity to do so, and Mr. Vallandigham
cross-examined the witnesses himself, and called those who testified
for him. The question of fact raised by him was that he had not
advised forcible resistance to the government, but had urged action
at the elections by defeating the party in power at the polls. That
he did not in terms advocate insurrection was admitted by the judge
advocate of the court, but the commission were persuaded that the
effect of his speech was intended and well calculated to be
incendiary, and to arouse any kind of outbreak in sympathy with the
armed enemies of the country. The trial ended on the 7th of May, but
the judgment was not promulgated till the 16th, proceedings in
_habeas corpus_ having intervened. The finding of the court was that
the prisoner was guilty, as charged, and the sentence was close
confinement in Fort Warren, Boston harbor, during the continuance of
the war.
On the 9th of May Mr. Pugh made application to the United States
Circuit Court, Judge Leavitt sitting, for a writ of _habeas corpus_
directed to General Burnside, in order that the lawfulness of Mr.
Vallandigham's arrest and trial might be tested. The court directed
notice of the application to be given to the general, and set the
11th for the hearing. The case was elaborately argued by Mr. Pugh
for the prisoner, and by Mr. Aaron F. Perry and the District
Attorney Flamen Ball for General Burnside. The hearing occupied
several days, and the judgment of the court was given on the morning
of the 16th. Judge Leavitt refused the writ on the ground that,
civil war being flagrant in the land, and Ohio being under the
military command of General Burnside by appointment of the
President, the acts and offences described in General Order No. 38
were cognizable by the military authorities under the powers of war.
General Burnside had awaited the action of the court, and now
promulgated the sentence under the judgment of the military
commission. Three days later (May 19th) the President commuted the
sentence by directing that Mr. Vallandigham be sent "under secure
guard, to the headquarters of General Rosecrans, to be put by him
beyond our military lines, and that in case of his return within our
line, he be arrested and kept in close custody for the term
specified in his sentence." This was done accordingly. The
Confederate officials adopted a careful policy of treating him
courteously without acknowledging that he was one of themselves, and
facilities were given him for running the blockade and reaching
Canada. There he established himself on the border and put himself
in communication with his followers in Ohio, by whom he was soon
nominated for the Governorship of the State.
The case, of course, excited great public interest, and was, no
doubt, the occasion of considerable embarrassment to the
administration. Mr. Lincoln dealt with it with all that shrewd
practical judgment for which he was so remarkable, and in the final
result it worked to the political advantage of the National cause.
Sending Vallandigham beyond the lines took away from him the
personal sympathy which might have been aroused had he been confined
in one of the casemates of Fort Warren, and put upon him an
indelible badge of connection with the enemies of the country. The
cautious action of the Confederates in regard to him did not tend to
remove this: for it was very apparent that they really regarded him
as a friend, and helped him on his way to Canada in the expectation
that he would prove a thorn in Mr. Lincoln's side. The President's
proposal to the leading politicians who applied to him to rescind
the sentence, that as a condition of this they should make certain
declarations of the duty to support the government in a vigorous
prosecution of the war, was a most telling bit of policy on his
part, and took the sting entirely out of the accusations of tyranny
and oppression.
It must be admitted, however, that the case was one in which the
administration ought to have left Burnside wholly untrammelled in
carrying out the proclamation of September 25, 1862, or should have
formulated a rule for its military officers, so that they would have
acted only in accordance with the wishes of the government, and in
cases where the full responsibility would be assumed at Washington.
When Burnside arrested Mr. Vallandigham, the Secretary of War
telegraphed from Washington his approval, saying, "In your
determination to support the authority of the government and
suppress treason in your department, you may count on the firm
support of the President." [Footnote: Official Records, vol. xxiii.
pt. ii. p. 316.] Yet when a little later Burnside suppressed the
"Chicago Times" for similar utterances, the President, on the
request of Senator Trumbull, backed by prominent citizens of
Chicago, directed Burnside to revoke his action. [Footnote: _Id_.,
pp. 385, 386.] This the latter did by General Order No. 91, issued
on the 4th of June. He read to me on June 7th a letter from Mr.
Stanton, which practically revoked the whole of his Order No. 38 by
directing him not to arrest civilians or suppress newspapers without
conferring first with the War Department. This would have been very
well if it had been done at the beginning; but to have it come after
political pressure from the outside, and in so marked contradiction
to the approval first expressed, shows that there was no
well-considered policy. It put Burnside himself in an intolerable
position, and, of course, made him decline further responsibility
for such affairs in his department. [Footnote: I do not find in the
Official Records the letter of Mr. Stanton above referred to; but I
speak of it from a written memorandum I made at the time.]
The whole question as to the right and the policy of military
arrests and orders in such a time bristles with difficulties. Had I
been consulted before Burnside took action, I should have advised
him to collect carefully the facts and report them to Washington,
asking for specific instructions. The subject called for directions
which would be applicable in all the military departments which
included States out of the theatre of active warlike operations; and
such general directions should be given by the government. But
Burnside was apt to act impulsively, and his impulse was to follow
the bent of his ardent patriotism. He was stirred to burning wrath
by what seemed to him an intent to give aid and comfort to the
rebellion, and meant to punish such conduct without stopping to ask
what complications might come of it.
I had found it desirable to form a judgment of my own with reference
to the extent or limitation of military authority in the actual
circumstances, and I quote the form in which I then cast it, so that
I may not seem to be giving opinions formed after my own military
duties were ended. I concluded, "First: That martial law operates
either by reason of its proclamation by competent authority, or _ex
necessitate rei_ in the immediate theatre of military operations.
Second; That when the struggle is in the nature of a revolution, and
so long as the attempted revolution is in active progress, no
definite limits can be given to the 'theatre of operations,' but the
administration must be regarded as possessing a limited
discretionary power in the use of martial law." As to the practical
application of this power, "the presumptions are always in favor of
the established civil law of the land, whenever and wherever it has
a reasonable chance of unobstructed operation. In a State or portion
of the country not the theatre of actual fighting, and where the
civil courts are actually organized and working, there must be some
strong reason for sending criminals or State prisoners before a
military tribunal; such as that the government had reason to believe
that a conspiracy was so powerful as to make an actual present
danger of its overthrowing the loyal governments in some of the
States before the civil courts could act in the ordinary process of
business. In such a case, the arrest and admission to bail of the
conspirators might be only the signal for their adherents to seize
the reins of civil power, overthrow the courts, and consummate a
revolution. The quick and summary action of military power would
then be the only thing which could avert the danger. The
justification of the use of a military tribunal depends on the
existence of 'probable cause' for believing the public danger to be
great."
I see no reason to change the form of stating the principle I then
adopted. The limitations given it seem sufficient to secure proper
caution in applying it, and will show that I thought then, as I do
now, that the administration ought to have laid down rules by which
the commandants of military departments could be guided, and which
would have saved us from the weakness of acting with seeming vigor
on one day, only to retreat from our position the next.
In Vallandigham's case the common argument was used by his friends
that he was not exceeding a lawful liberty of speech in political
opposition to the administration. When, however, a civil war is in
progress, it is simply a question of fact whether words used are
intended to give aid and comfort to the enemy and are evidence of
conspiracy with the public enemy. If so, it is too clear for
argument that the overt acts of the enemy are brought home to all
who combine and confederate with them, and all are involved in the
same responsibility. This question of fact and intent was officially
settled by the findings of the military court. But there was another
connection of the speech with overt acts, which the public mind took
firm hold of. Among the most incendiary of Vallandigham's appeals
had been those which urged the people to resist the provost-marshals
in the several districts. It is nonsense to say that resisting the
draft or the arrest of deserters only meant voting for an opposition
party at the elections. There had been armed and organized
resistance to arrest of deserters in Noble County just before his
speech, and soon after it there was a still more formidable armed
organization with warlike action against the enrolling officers in
Holmes County, in the same region in which the speech was made. This
last took the form of an armed camp, and the insurgents did not
disperse till a military force was sent against them and attacked
them in fortified lines, where they used both cannon and musketry.
It did not seem plausible to the common sense of the people that we
could properly charge with volleying musketry upon the barricades of
the less intelligent dupes, whilst the leader who had incited and
counselled the resistance was to be held to be acting within the
limits of proper liberty of speech. Law and common sense are
entirely in harmony in regarding the conspiracy as a unit, the
speech at Mount Vernon and the armed collision on the Holmes County
hill being parts of one series of acts in which the instigator was
responsible for the natural consequences of the forces he set in
motion.
To complete the judicial history of the Vallandigham case, it may be
said that he applied to the Supreme Court of the United States a few
months afterward for a writ to revise and examine the proceedings of
the military commission and to determine their legality. The court
dismissed his application on the ground that the writ applied for
was not a legal means of bringing the proceedings of the military
court under review. The charges and specifications and the sentence
were all set forth in the application, so that the court was made
officially aware of the full character of the case. This was
naturally accepted at the time as practically sustaining the action
of the President and General Burnside. When, however, the war was
over, there was taken up to the Supreme Court the case of Milligan
from Indiana, who had been condemned to death for treasonable
conduct in aid of the rebellion, done as a member of the Knights of
the Golden Circle, an organization charged with overt acts in
attempting to liberate by force the Confederate prisoners of war in
the military prisons, and otherwise to assist the rebellion. The
current public sentiment in regard to executive power had
unquestionably changed with the return to peace, and Lincoln having
been assassinated and Johnson being in the presidential chair, the
tide was running strongly in favor of congressional rather than
executive initiative in public affairs. It cannot be denied that the
court responded more or less fully to the popular drift, then as in
other important historical junctures. In the opinion as delivered by
Judge Davis, it went all lengths in holding that the military
commission could not act upon charges against a person not in the
military service, and who was a citizen of the State where tried,
when in such State the civil courts were not actually suspended by
the operations of war. Chief Justice Chase and three of the justices
thought this was going too far, and whilst concurring in discharging
Milligan, held that Congress could authorize military commissions to
try civilians in time of actual war, and that such military
tribunals might have concurrent jurisdiction with the civil courts.
[Footnote: Ex parte Vallandigham, Wallace's Reports, i. 243. Ex
parte Milligan, _Id_., iv. 2, etc.]
We must not forget that whilst the judicial action determines the
rights of the parties in a suit, the executive has always asserted
his position as an independent co-ordinate branch of the government,
authorized by the Constitution to determine for himself, as
executive, his duties, and to interpret his powers, subject only to
the Constitution as he understands it. Jefferson, Jackson, and
Lincoln in turn found themselves in exigencies where they held it to
be their duty to decide for themselves on their high political
responsibility in matters of constitutional power and duty. Lincoln
suspended the privilege of _habeas corpus_ by his own proclamation,
and adhered to his view, although Judge Taney in the Circuit Court
for Maryland denied his power to do so. When Congress passed a
regulating act on the subject which seemed to him sufficient, he
signed the statute because he was quite willing to limit his action
by the provisions embodied in it, and not because he thought the act
necessary to confer the power.
An incident in the history of the treasonable organizations believed
to exist in Indiana emphasizes the change of mental attitude of
Judge Davis between 1863 and 1866. During the progress of the
Vallandigham case, General Burnside conceived a distrust of the
wisdom of the course pursued by Brigadier-General Carrington, who
commanded at Indianapolis, and sent Brigadier-General Hascall there
to command that district. Carrington had been the right hand of
Governor Morton in ferreting out the secrets of the Golden Circle,
and applying Order No, 38 to them, but Burnside's lack of confidence
in the cool-headed caution and judgment of his subordinate led him
to make the change. Hascall was a brave and reliable Indiana
officer, who had seen much active field service, and with whom I was
associated in the Twenty-third Corps during the Atlanta campaign. He
was ardently loyal, but an unexcitable, matter-of-fact sort of
person. He did not suit Governor Morton, who applied to the
Secretary of War to have him removed from command, declaring that
immediate action was important. Judge Davis, who was in
Indianapolis, was induced to co-operate with the governor in the
matter, and telegraphed to Mr. Stanton that Hascall's removal was
demanded by the honor and interests of the government. [Footnote:
Official Records, vol. xxiii. pt. ii. p.369. See also _Id_., p.194.]
Hascall was sent to the field, and after a short interval Carrington
was restored to duty at Indianapolis. In the continued investigation
and prosecution of the Golden Circle, and finally in the trial of
Milligan, General Carrington was, under Governor Morton, the most
active instrument; and it was, of course, to keep him at work on
that line that the changes in command were secured. Yet it was the
fruit of this very work of Carrington that was so strongly and
sweepingly declared to be illegal by the Supreme Court, Judge Davis
himself delivering the opinion and going beyond the chief-justice
and others in denying all power and authority to military courts in
such cases. Had Mr. Lincoln lived, he would no doubt have avoided
any question before the Supreme Court in regard to his authority, by
pardoning Milligan as he granted amnesty to so many who had been
active in the rebellion. But Mr. Johnson was so much hampered by his
quarrel with Congress over reconstruction that he was disposed to
avoid interference with criminal cases where his action could
subject him to the charge of sympathy with the accused. He carefully
abstained from meddling with Jefferson Davis as he did with
Milligan, and left the responsibility with the courts.
The final development of the investigation of the Society of the
Golden Circle took place after I had again obtained a field command,
and I was glad to have no occasion to form a personal judgment about
it. The value of evidence collected by means of detectives depends
so greatly on the character of the men employed and the instructions
under which they act, that one may well suspend judgment unless he
has more than ordinarily full knowledge on these points. The
findings of the military commission must stand as a _prima facie_
historical determination of the facts it reported, and the burden of
proof is fairly upon those who assert that the conclusions were not
sustained by trustworthy evidence.
I have mentioned the open resistance to the draft and to the arrest
of deserters in Noble and in Holmes counties. The first of these was
scarcely more than a petty riotous demonstration, which melted away
before the officers as soon as they were able to show that they were
backed by real power. The second looked for a time more formidable,
and assumed a formal military organization. Governor Tod issued a
proclamation warning the offenders of the grave consequences of
their acts, and exhorting them for their own sake and the sake of
their families to disperse and obey the laws. I directed General
Mason at Columbus to be sure, if military force had to be used, that
enough was concentrated to make stubborn resistance hopeless. The
insurgents maintained a bold face till the troops were close upon
them; but when they saw a strong line of infantry charging up toward
the stone fences on the hillside where they had made their camp, and
heard the whistling of bullets from the skirmishers, their courage
gave way and they fled, every man for himself. Only two or three
were seriously wounded, and comparatively few arrests were made.
[Footnote: Official Records, vol. xxiii. pt. i. pp.395-397.]
Submission to law was all that was demanded, and when this was fully
established, the prisoners were soon released without further
punishment. The fear of further prosecutions operated to preserve
the peace, and the men who had been allowed to go at large were a
guaranty, in effect, for the good behavior of the community.
Before dropping the subject, I may properly add that the arrest of
Mr. Vallandigham very naturally raised the question how far we were
willing to go in bringing disloyal men before the military courts.
Prominent citizens, and especially men in official position, often
found themselves urged to ask for the arrest of the more outspoken
followers of Vallandigham in every country neighborhood. In answer
to inquiries which had come through the Hon. Martin Welker,
[Footnote: Afterward for many years Judge of the U. S. District
Court for northern Ohio.] member of Congress for the Wayne County
district, I wrote him a letter which shows the efforts we made to be
prudent and to avoid unnecessary collisions. Judge Welker had served
as Judge Advocate on my staff in the three months' service in the
spring of 1861, and my intimacy with him made me speak as to our
policy without reserve.
"We are hopeful," I wrote, "now that the United States Circuit Court
has refused to release Mr. Vallandigham on _habeas corpus_, that his
followers will take warning and that their course will be so
modified that there may be no occasion to make many more arrests.
"I am persuaded that our policy should be to repress disloyalty and
sedition at home rather by punishment of prominent examples than by
a general arrest of all who may make themselves obnoxious to General
Order No. 38, as the latter course will involve a more frequent
application of military authority than we choose to resort to,
unless circumstances should make it imperatively necessary... I am
full of hope that the seditious designs of bad men will fail by
reason of the returning sense of those who have been their dupes,
and that the able and patriotic opinion of Judge Leavitt in the
_habeas corpus_ case will cause great numbers to take positive
ground in favor of the government, who have hitherto been more or
less under the influence of our northern traitors. If such shall be
the result we can afford to overlook bygones, and I am inclined to
await the development of public sentiment before following up
Vallandigham's arrest by many others."
This letter was written before the Secretary of War made any
limitation of Burnside's authority in enforcing his famous order,
and shows that in the District of Ohio, at least, there was no
desire to set up a military despotism, or to go further in applying
military methods to conduct in aid of the rebellion than we might be
forced to go.
Burnside's action in suppressing disloyal newspapers was not
peculiar to himself. General Wright, his predecessor, had done the
same, and other military commandants, both before and after and in
other parts of the country, had felt obliged to take the same
course. These facts only make more clear the desirability of a
well-considered system of action determined by the government at
Washington, and applicable to all such cases.