USA > Ohio > History of Ohio; the rise and progress of an American state, Volume Four > Part 15
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"C. L. Vallandigham."
On the next day he was brought before a military commission appointed by command of General Burn- side, charged with "publicly expressing, in violation of General Orders No. 38, from Headquarters of the Ohio, sympathy for those in arms against the Govern- ment of the United States, and declaring disloyal
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sentiments and opinions, with the object and purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion." The specifications consisted of expressions used in the Mt. Vernon speech and were testified to by two army officers who were bystanders and took notes at the time. Vallandig- ham refused to plead and denied the jurisdiction of the Commission. Directing that a plea of "not guilty" be entered, the Commission proceeded with the trial.
On May 16 the Commission found the prisoner guilty of the charge and sentenced him to be placed in close confinement in some fortress of the United States, to be designated by the commanding officer of the Department, there to be kept during the continuance of the war. General Burnside approved the order and designated Fort Warren, in Boston harbor, as the place of confinement. This sentence was modified by President Lincoln May 19, in an order to General Burnside, wherein he directed him to send without delay Clement L. Vallandigham "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 lines he be arrested and kept in close custody for the term specified in his sentence."
While Vallandigham was being tried before the Military Commission, application was made, May 9, in his behalf, for a writ of habeas corpus in the United States Circuit Court at Cincinnati, Judge H. H. Leavitt presiding. Former Senator George E. Pugh appeared as the prisoner's counsel, and in an argument of great ability and accomplished eloquence argued for the issuance of the writ. General Burnside, the defend-
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ant, was represented by Mr. Aaron F. Perry of the Cincinnati bar and the District Attorney, Flamen Ball; Judge Leavitt refused the writ on the ground that as civil war was upon the land and Ohio was under the military command of General Burnside by appoint- ment of the President, the acts and offenses set forth in General Orders No. 38 were cognizable and under the jurisdiction of the military authorities under the rules and powers of war.
In pursuance of the President's orders Vallandigham, on May 19, 1863, was placed on the gunboat Exchange at Cincinnati and transferred to Louisville; May 23d he was taken under guard to Murfreesboro, the outpost of the Union army in Tennessee. At this place he was delivered to General Rosecrans, whose prisoner he remained until two o'clock on the morning of the 25th, when his journey into the Confederate lines com- menced. The picket line of the enemy was approached just after daylight. A flag of truce was sent to the commanding officer of the Confederate pickets, an- nouncing the presence of Vallandigham and their purpose and desire to place him within their lines. The proposition amazed and embarrassed the Con- federate officer, who felt it necessary to inform General Bragg of the situation. In the meantime the Federal officers, seemingly desirous of getting rid of their charge, took their prisoner within the picket line and left him. To the Confederate soldiers who met him Vallandigham said, "I am a citizen of Ohio, and o: the United States. I am here within your lines by force and against my will. I therefore surrende: myself to you as a prisoner of war." Genera
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Bragg's headquarters were at Shelbyville, sixteen miles from the outposts, and in a few hours he was in the presence of the celebrated Confederate General, who received him in a kindly and courteous manner. He remained at Shelbyville a week practically in seclusion. On June I, he was directed to report on parole to General Whiting at Wilmington, North Carolina.
During all these events the arrest, trial and banish- ment of Vallandigham had created a profound sensation throughout the country. The peace elements of the Democratic party were lashed into a fury over what they deemed a violation of the most sacred rights of citizenship. They denounced the arrest as a military usurpation, and meetings of great size and earnestness were called to protest against the tyrannical acts of the Administration. On Saturday, May 16, an immense meeting of Democrats was held at Albany, New York. A series of resolutions was passed and for- warded to President Lincoln, protesting against the arrest, trial and sentence of Vallandigham. President Lincoln, recognizing the importance of the stand taken by the Government, as well as the earnestness of the protestants, answered the committee in a letter dated June 12, 1863. From thestart the President had treated the Vallandigham case with great native shrewdness. He did not propose that a distinguished prisoner in a Federal fortress should be made a martyr and draw an intense personal sympathy throughout the country. He took this element out of the situation by sending Vallandigham beyond the lines among the enemies of his country, whom he had been aiding by his agitation.
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In his letter to the Albany Committee Mr. Lincoln showed the same practical sense. He took up specif- ically the resolutions of the meeting and in his best argumentative style answered them in a manner that made a deep impression on the country. In his clear and effective English he swept away the sophis- tries of the case. The letter itself is too lengthy to be given here in full, but among his answers is the following:
"By the third resolution, the meeting indicate their opinion that military arrests may be constitutional in localities where rebellion actually exists, but that such arrests are unconstitutional in localities where rebellion or insurrection does not actually exist. They insist that such arrests shall not be made 'outside of the lines of necessary military occupation, and the scenes of insurrection.' Inasmuch, however, as the Consti- tution itself makes no such distinction, I am unable to believe that there is any such constitutional dis- tinction. I concede that the class of arrests complained of can be constitutional only when, in cases of rebellion or invasion, the public safety may require them; and I insist that in such cases they are constitutional where- ever the public safety may require them; as well in places to which they may prevent the rebellion extend- ing as in those where it may be already prevailing; as well where they may restrain mischievous inter- ference with the raising and supplying of armies to suppress the rebellion, as where the rebellion may actually be; as well where they may restrain the entic- ing men out of the army, as where they would prevent
WILLIAM TECUMSEH SHERMAN
Born in Lancaster, Ohio, February 8, 1820; graduated from United States Military Academy, 1840; during the Mexican War served with credit in California; resigned from the army, 1853, and was variously engaged in private affairs until the Civil War; appointed Colonel of the Thirteenth Infantry, May 14, 1861; Brigadier General of volunteers, May 17, 1861; Major General of volunteers, May I, 1862; Brigadier General, regular army, July 4, 1863; Major General, regular army, August 12, 1864; Lieutenant General, July 25, 1866; General, March 4, 1869; was Commander in Chief of the army from March 8, 1869, to November 1, 1883; died February 14, 1891.
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"By the third resolution, the meeting indicate then opinion that military arrests may be constitutional ho localities where rebellion actually exists, but that much arresta are unconstitutional in localities where rebelling of insurrection does not actually exist. They iomint that such arrests shall not be made 'outside of the lines of necessary military occupation, and the scene of insurrection.' Inasmuch, however, as the Comme tution itself makes no much distinction, I am unaby to believe that there is any such constitutional tinction. I concede that the class of arrests complain! of can be constitutional only when, in cases of rebellion or invasion, the public safety may require them; mud I inviet that in wach cases they are constitutional when ever the public safety may require them; as well pinces to which they may prevent the rebellion extend- ing as in those where it may be already prevailing; as well where they may restrain mischievous inter- ference with the raising and supplying of armies po suppress the rebellion, as where the rebellion may actually be; as well where they may restrain the entic- ing men out of the army, as where they would prevent
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mutiny in the army; equally constitutional at all places where they will conduce to the public safety, as against the dangers of rebellion or invasion.
"Take the particular case mentioned by the meeting. It is asserted, in substance, that Vallandigham was, by a military commander, seized and tried 'for no other reason than words addressed to a public meeting, in criticism of the course of the Administration, and in condemnation of the military orders of the General.' Now, if there be no mistake about this, if this assertion is the truth and the whole truth, if there was no other reason for the arrest, then I concede that the arrest was wrong. But the arrest, as I understand, was made for a very different reason. Mr. Vallandigham avows his hostility to the war on the part of the Union; and his arrest was made because he was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it. He was not arrested because he was damaging the political prospects of the Administration, or the personal interests of the commanding general, but because he was damaging the army, upon the existence and vigor of which the life of the nation depends. He was warring upon the military, and this gave the mili- tary constitutional jurisdiction to lay hands upon him. If Mr. Vallandigham was not damaging the military power of the country, then his arrest was made on mis- take of fact, which I would be glad to correct on reasonably satisfactory evidence.
"I understand the meeting, whose resolutions I am considering, to be in favor of suppressing the rebel-
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lion by military force-by armies. Long experience has shown that armies cannot be maintained unless desertions shall be punished by the severe penalty of death. The case requires, and the law and the Consti- tution sanction, this punishment. Must I shoot a simple-minded soldier-boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? This is none the less injurious when effected by getting a father, or brother, or friend, into a public meeting, and there working upon his feelings till he is persuaded to write the soldier-boy that he is fighting in a bad cause, for a wicked Administration of a con- temptible Government, too weak to arrest and punish him if he shall desert. I think that in such a case to silence the agitator and save the boy is not only con- stitutional, but withal a great mercy."
It is a fact, however, that notwithstanding President Lincoln's attitude, Vallandigham's arrest and banish- ment gave him much concern. He had no doubt of the right of the military authorities to act as they did, but he felt if the matter had been in his hands the insurgent leader could have been handled with less vigor and the same result accomplished, viz: his suppression. Vallandigham's friends claimed, and this view was shared by many conservative lawyers, that he was within the rights of free speech in his opposi- tion to the Administration. They also denied the right of jurisdiction, in his case, of a military tribunal to try and punish him. They claimed that Ohio was not a seat of military operations and that therefore there was no right to suspend the writ of habeas corpus.
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These objections, in light of the conditions at that time, were purely technical. While Ohio was not the seat of actual warfare between the Union and Confederate forces (although it became such by the Morgan Raid in July following), it was one of the sources of supply from which the Government drew its armies, and, as Mr. Lincoln showed in his Albany letter, it had the right to arrest and punish any force that prevented these supplies of men. There was a revolution prevailing; an armed force was seeking to dissolve the Union, and there were many men in Ohio who were aiding and abetting this armed force. The State of Ohio was a Military Department of the Government, and the President was the Commander-in-Chief of the army. He had the right to issue any orders that he deemed essential for the preservation of the Govern- ment. The action of General Burnside was the action of the President as such Commander-in-Chief. Burn- side saw arising in Ohio a decided movement to resist the Government in the draft. Vallandigham had urged the people to resist the drafting officers. We have seen already how such resistance took the form of an armed force in Noble county, and we shall meet later a similar formidable armed opposition in Holmes county. Under all these circumstances it is not tenable to say that the Government or its officers exceeded their powers when the leaders in these movements were punished. The life and the unity of the nation were at stake; its powers to smite its enemies were being shackled; and if these things had been done in any other civilized country engaged in a deadly conflict, the men who were responsible would have been promptly shot.
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While considering the Vallandigham case it will be of interest to the reader to complete its judicial history, and to note the result in a similar case in Indiana. At the December term, 1863, of the United States Supreme Court, application was made to review and examine the proceedings and findings of the Mili- tary Commission which sentenced Vallandigham. On February 15, 1864, after the full official record had been presented to the court, Justice Noah H. Swayne, . delivering the opinion, decided, (Ex parte Vallandig- ham, 4 Wallace, U. S. Reports, page 243), that it had no power "to review or pronounce any opinion upon the proceedings of the Military Commission." Quite different was another decision of the court. In Septem- ber, 1864, Lambdin P. Millikin and other citizens of Indiana were tried and sentenced to death by a Military Commission for treasonable conduct. They were proven to have been members of the "Knights of the Golden Circle," an organization charged with overt acts of treason in attempting to liberate Confederate prisoners by force, and in otherwise aiding and assist- ing in the Rebellion.
In the course of events these cases were passed upon in December, 1866, by the Supreme Court of the United States. There had in the meantime been considerable modification of public sentiment; the war was over and the country was on its way to a peaceful future. No doubt the changed conditions were reflected some- what in the opinion of the court. Judge David Davis, in delivering the opinion (Ex parte Millikin, 4 Wallace U. S. Reports, page 2), held that military commis- sions had no jurisdictions over persons not in military
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service when they were citizens of the State where tried, if in that State the civil courts were open and not suspended by the operations of war. Chief Justice Chase and three Associate Justices held, while agreeing in the discharge of Millikin, that Congress had power to authorize military commissions to try civilians in time of actual war, and that such tribunals might have concurrent jurisdiction with the civil court. In this last proposition we see an affirmation of the Vallandig- ham case decided two years before.
Open and organized violence toward the Govern- ment draft, and the protection of deserters from the Union Army, again occurred in Ohio in June, 1863, in Holmes county. In this instance the resistance was far more serious and formidable than that in Noble county. It took the form of a fortified camp, occupied by nearly a thousand armed men with four small howitzers. Gov- ernor Tod on the 16th issued a proclamation urging the resistants to disperse and render the obedience that all good citizens owed to the laws of their country, but this was unheeded, and it took a detachment of the military, under Colonel Wallace of the Fifteenth Ohio, to suppress the miniature rebellion. After some skirmishing and firing on both sides, in which two of the resistants were wounded, the band dispersed. On June 18, prominent Peace Democrats visited the camp and urged a cessation of their foolish resistance. The ringleaders were delivered to the military authori- ties and nothing was done to them. They were all from the region in which Vallandigham's famous speech was made, and it seemed folly to punish severely the misguided followers of his eloquent advice. But it
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only emphasizes the truth and logic of President Lin- coln's reason for removing the "wily agitator" who encouraged such action.
By Vallandigham's trial and banishment he became idolized in the eyes of his party, and they regarded him as a brave and patriotic leader. They conceived the idea that his true mission was to lead them to vic- tory as their candidate for Governor of Ohio. This thought grew firmly in the rank and file of the Peace party. The leaders regarded it as unwise, and they preferred Hugh J. Jewett, their candidate of two years before. He was a Union man and a war Democrat of a conservative type. But the masses would hear to no such compromise. They were inflamed at the method adopted by the Government relative to Val- landigham. To redress his wrongs by a vindication was far more important than saving the Union or pros- ecuting the war. The truth was, they were ready for civil war if any further harm should be offered their leader.
The Democratic State Convention assembled in Columbus, June II. Although it was called as a delegate Convention, there gathered together forty thousand men from every part of the State. Since the famous Whig Convention of 1840 there had been nothing to equal it in enthusiasm and numbers. Like the Whig gathering it was one seething mass of excited and determined units. In vain did the more sober- minded leaders endeavor to stem the Vallandigham tide. They begged General McClellan, who was a citizen of Ohio, to permit the use of his name as a candi- date for Governor, but he declined. Earnestly did
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Henry B. Payne urge the candidacy of Judge Jewett, but he found no encouragement. After the organiza- tion of the Convention Vallandigham was nominated, he receiving four hundred and eleven votes and Hugh J. Jewett thirteen. George E. Pugh, who had defended the nominee with such brilliancy and ability in his trials, presented his client's name to the Convention. His speech was a violent and inflammatory denuncia- tion of President Lincoln, General Burnside, and the Government, and a glorification of Vallandigham. It was a positive challenge to the Government to arrest him, and far exceeded in bitterness Vallandigham's Mt. Vernon speech. Pugh's address was so respon- sive to the sentiments of the Convention, and his eloquently rebellious utterances so coincided with those of the delegates, that against his positive protest he was nominated for Lieutenant Governor. Answer- ing his appeal not to adjourn "until, in the name of one hundred and eighty thousand Democrats of Ohio, you have demanded of Abraham Lincoln the restora- tion of Vallandigham to his own," the Convention, on motion of Allen G. Thurman, appointed a committee to request of President Lincoln the exile's recall. This committee was composed of prominent Peace Democrats, one from each congressional district, and included in its membership every Democratic congressman except Samuel S. Cox of the Columbus district, who for some reason was not chosen.
The committee, on June 26, met at Washington and formulated an address to President Lincoln setting forth the resolutions of the Columbus Convention and giving lengthy reasons for the revocation of the order
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against Vallandigham. On the 29th the President replied to this communication. After answering, as he did in the case of the Albany Committee, the various arguments of the petitioners, he said that he would revoke the order against Vallandigham if the committee or a majority of it would subscribe in writing to the following propositions :
"I. That there is now a rebellion in the United States, the object and tendency of which is to destroy the National Union; and that, in your opinion, an army and navy are constitutional means for suppressing that rebellion.
"2. That no one of you will do anything which in his own judgment will tend to hinder the increase, or favor the decrease, or lessen the efficiency of the army and navy while engaged in the effort to suppress that rebellion.
"3. That each of you will, in his sphere, do all he can to have the officers, soldiers and seamen of the army and navy while engaged in the effort to suppress the rebellion, paid, fed, clad, and otherwise well pro- vided and supported."
To these conditions the committee refused assent, which would have been tantamount to agreeing to sup- port President Lincoln's war policy in the preservation of the Union, and this of course meant total surrender on account of the Peace party in Ohio.
Leaving for the present the situation in Ohio, let us turn to the personal fortunes of Vallandigham. We left him under parole at Wilmington, North Carolina. He remained there until June 17, when he took the steamer Cornubia, which ran the blockade and safely
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landed at Bermuda on the 20th. There he spent a pleasant ten days, then took a steamer to Halifax, at which place he landed on the 5th of July. From Halifax he went to Quebec and Montreal, where he was cordially received; on July 15 he arrived at Niagara Falls, on the Canadian side.
It may be remarked that during his stay in Canada from first to last Vallandigham was greeted and treated with cordial enthusiasm. At Quebec, Mon- treal, Niagara Falls and Windsor he was lionized by the most lavish laudations. Like their brethern at home, the Canadians had no love for the American Republic, and they doubtless found it cheaper to encourage an American insurgent against a war for the Union than to fit out privateers to prey upon American merchant- men. The subsequent awarding of $15,500,000 claims against England for her assistance in the sea depreda- tions of the Confederate cruiser Alabama and like crafts, demonstrated the wisdom of the Canadians, and it may be further noted, as these pages later on will show, that the "Lady of the Snows" was an ever- willing and welcoming hostess for every emissary of the Southern Confederacy that aimed to attack the United States in the rear.
From the Clifton House, Niagara Falls, Vallandigham issued an address to the Democracy of Ohio accepting the nomination for Governor and stating his position. It is needless to say that this was received with un- bounded enthusiasm by his earnest and loyal partisans.
The Union Convention met at Columbus June 17, in response to a call to "all loyal citizens who are in favor of the maintenance of the government and the
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prosecution of the war now being carried on for the suppression of the rebellion against it." Again, as in the case of Governor Dennison, the Union party found itself embarrassed over the question of its candi- date for Governor. Governor Tod, like his prede- cessor, had proved unpopular in his administration; notwithstanding that he was faithful, zealous and una- bating in his labors, he was held responsible for what was then deemed needless expense in his administra- tion, and, strange to say it now, for his vigor in the matter of making military arrests. The dissatisfaction with Governor Tod was not general in his party, but it was strong enough to be formidable; neither were the objections to him well founded, but they secured enough believers to make his nomination unwise. There was enough opposition to destroy his availability, and that is the first running quality of a candidate for public favor.
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