Chapter 22


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Formerly Major-General commanding Twenty-Third Army Corps


APRIL 1861--NOVEMBER 1863  



 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.



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