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civil courts. This protest was, of course, disregarded, and his trial went on. It was proved that he made the speech of which we have already given an abstract. He called as witness in his defense Mr. S. S. Cox, who was also one of the orators of the occasion, and who testified that the speech of Mr. Vallandigham, though couched in strong language, was in no respect treasonable. When the evidence was all in, the accused entered a protest against the entire proceeding, repeating the terms of his original protest, and adding that his alleged offense itself was not known to the Constitution nor to any law thereof. "It is," he said, "words spoken to the people of Ohio, in an open and public political meeting, lawfully and peaceably assembled under the Constitution and upon full notice. It is words of criticism of the public policy of the public servants of the people, by which policy it was alleged that the welfare of the country was not promoted. It was an appeal to the people to change that policy, not by force, but by free elections and the ballot box. It is not pretended that I counseled disobedience to the Constitution or resistance to laws and lawful authority. I never have. Beyond this protest, I have nothing further to submit." There were no speeches either in prosecution or in defense. When the court was cleared it remained in deliberation for three hours and returned a decision that the accused was guilty of the charge of "publicly expressing, in violation of General Order No. 38, from Headquarters Department of the Ohio, his sympathy for those in arms against the Government of the United States, 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." They therefore 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 finding and the sentence, and designated Fort Warren, Boston Harbor, as the place of confinement in accordance with the sentence.

But before the finding of the commission was made public, Mr. George E. Pugh, as counsel for Vallandigham, applied to Judge Leavitt of the United States Circuit Court, sitting in Cincinnati, for a writ of habeas corpus. On the 11th of May the case was heard, and extended arguments were made by Mr. Pugh in favor of the motion, and by Mr. Perry, who appeared on behalf of General Burnside, against it. But the most noticeable feature of the trial was a written address from General Burnside himself, presented to the district attorney, in which he explained and defended his VOL. XXXVIII.-18.

action. He began by saying that he was prohibited by law and by his duty from criticising the policy of the Government; that such abstention from injurious criticism was binding on every one in the service. He then went on to say:

avoid saying anything that would weaken the army If it is my duty and the duty of the troops to by preventing a single recruit from joining the ranks, by bringing the laws of Congress into disrepute, or by causing dissatisfaction in the ranks, it is equally the duty of every citizen in the department to avoid the same evil. . . . If I were to find a man from the enemy's country distributing in my camp speeches of their public men that tended to demoralize the troops, or to destroy their confidence in the constituted authorities of the Government, I would have him tried and hung, if found guilty, and all the rules of modern warfare would sustain me. Why should such speeches from our own public men be allowed?

He even went so far as to disapprove the use of party names and party epithets, saying, “The simple names of patriot and traitor are comprehensive enough."

If the people [he said] do not approve the policy of the Government they can change the constitutional authorities at the proper time and by the proper method. Let them freely discuss the policy in a proper tone; but my duty requires me to stop license and intemperate discussion, which tend to weaken the latter is in the presence of the enemy it is cowthe authority of the Government and army: whilst ardly so to weaken it. . . . There is no fear of the people losing their liberties; we all know that to be the cry of demagogues, and none but the ignorant will listen to it.

Judge Leavitt denied the motion for habeas corpus in a long decision, in which he thoroughly reviewed the legal points involved in the case. The essential point of his decision was this: General Burnside, by order of the President, had been appointed to the military supervision of the Department of the Ohio, including, among other States, the State of Ohio. The precise extent of his authority was not known to the court, but it might properly be assumed that the President had clothed him with all the powers necessary to the efficient discharge of his duties. It is not claimed that in time of war the President is above the Constitution. He derives his power, on the contrary, expressly from the provision of that instrument that he shall be commander-in-chief of the army and navy. The Constitution does not specify the powers he may rightfully exercise in this character, nor are they defined by legislation. No one denies, however, that the President, in this character, is invested with very high powers, which he has exercised, as commander-in-chief, from time to time during the present rebellion.

His acts in this capacity must be limited to such as are deemed essential to the protection and preservation of the Government and the Constitution. And in deciding what he may rightfully do under this power, where there is no express legislative declaration, the President is guided solely by his own judgment, and is amenable only for an abuse of his authority by impeachment. The occasion which calls for the exercise of this power exists only from the necessity of the case; and when the necessity exists there is a clear justification of the act. The judge concludes that if this view of the power of the President is correct, it implies the right to arrest persons who, by their mischievous acts of disloyalty, impede or endanger the military operations of the Government.

And if the necessity exists, I see no reason [he said] why the power does not attach to the officer in command of a military department. The President cannot discharge the duties in person; he, therefore, constitutes an agent to represent him, clothed with the necessary power for the efficient supervision of the military interests of the Government throughout the department. ... In the exercise of his discretion General Burnside issued the order (No. 38) which has been brought to the notice of

the court.

Judge Leavitt would not comment on that order, but only referred to it because General Burnside had stated his motives for issuing it, and also because it was for its supposed violation that he ordered the arrest of Mr. Vallandigham. He had done this under his responsibility as the commanding general of the department, and in accordance with what he supposed to be the power vested in him by the appointment of the President. It was virtually an act of the Executive Department under the power vested in the President by the Constitution, and the court therefore refused to annul or reverse it.

The arrest, trial, and sentence of Vallandigham took the President somewhat by surprise, and it was only after these proceedings were consummated that he had an opportunity seriously to consider the case. If he had been consulted before any proceedings were initiated there is reason to believe he would not have permitted them; 1 but finding himself in presence of an accomplished fact, the question

1 General Burnside, feeling, after the trial, that his act had subjected the Administration to violent attack, thought proper to signify to the President that his resignation was at his service if desired, to which the President answered: "When I shall wish to supersede you I will let you know. All the Cabinet regretted the necessity of arresting, for instance, Vallandigham, some perhaps doubting there was a real necessity for it; but, being done, all were for seeing you through with it." [Lincoln to Burnside, May 29, 1863. MS.]

now given him to consider was, whether he should approve the sentence of the court, or, by annulling it, weaken the authority of the general commanding the district, and greatly encourage the active and dangerous secession element in the West. He concluded to accept the act of Burnside as within his discretion as military commander; but as the imprisonment of Vallandigham in the North would have been a constant source of irritation and political discussion, the President concluded to modify his sentence to one which could be immediately and finally executed, and the execution of which would excite far less sympathy with the prisoner, and, in fact, seriously damage his prestige and authority among his followers. The method of punishment which he chose was doubtless suggested by a paragraph in Burnside's Order No. 38, which had mentioned, as a form of punishment for the declaration of sympathies with the enemy, deportation "beyond our lines into those of their friends." He therefore commuted the sentence of Vallandigham, and directed that he be sent within the Confederate lines.2 This was done about a fortnight after the court-martial. Mr. Vallandigham was sent to Tennessee, and, on the 25th of May, was escorted by a small cavalry force to the Confederate lines near Murfreesboro'. After a short parley with the rebel videttes, who made no objection to receiving the prisoner, he was delivered into the hands of a single private soldier of an Alabama regiment, Mr. Vallandigham making a formal protest to the effect that he was within the Confederate lines by force and against his will, and that he surrendered as a prisoner of war.

The arrest and sentence of this distinguished Democrat produced a profound sensation throughout the country. It occasioned general rejoicing in the South. The Government in Richmond saw in it a promise of counter-revolution in the North, and some of the Confederate generals built upon it the rosiest hopes for future campaigns. General Beauregard, writing to a friend in Mobile,3 said the Yankees, by sending Vallandigham into Bragg's lines, had indicated a point of attack. He suggested that, Hooker being disposed of for the next six months at least, Lee should act on the

2 The order under which Vallandigham was sent South was dated the 19th of May and transmitted by telegraph from Washington to General Burnside: "The President directs that, without delay, you send C. L. Vallandigham, under secure guard, to the headquarters of General Rosecrans, to be put by him beyond our military lines, and in case of his return within our lines, he be arrested and kept in close custody for the term specified in his sentence." [McPherson, "History of the Rebellion," p. 162.]

3 May 26, 1863. War Records, Vol. XIV., p. 955.

defensive, and send Bragg 30,000 men to take the offensive at once. Let Bragg-or some better soldier who is sufficiently shadowed forth in parenthesis—“ destroy or capture (as it is done in Europe) Rosecrans's army; then march into Kentucky; raise 30,000 more men there and in Tennessee; then get into Ohio and call upon the friends of Vallandigham to rise for his defense and support; then call upon Indiana, Illinois, and Missouri to throw off the yoke of the accursed Yankee nation; then" — his plan growing more and more magnificent as it took grandeur and color under his pen-"call upon the whole North-west to join in the movement, form a Confederacy of their own, and join us by a treaty of alliance, defensive and offensive. What would then become of the North-east?" demanded the doughty creole. "How long would it take us to bring it back to its senses?" The feeling in the North, if less exuberant in its expression, was equally serious. No act of the Government has been so strongly criticised, and none having relation to the rights of an individual created a feeling so deep and so widespread. No further legal steps were taken in the case, except an application which was made by Vallandigham's counsel for a writ of certiorari to bring up the proceedings of the military commission for review in the Supreme Court of the United States. This motion was denied, on the evident ground that no such writ could be issued by the Supreme Court to any such military commission, as the court had no jurisdiction over the proceedings of such a tribunal. But in the Democratic newspapers, in public meetings, in a multitude of leading articles and pamphlets, the question was discussed with the greatest earnestness and even violence, the orators and politicians of the Democratic party regarding the incident as the most valuable bit of political capital which had fallen to them during the year. Even some of the most loyal newspapers of the North joined in the general attack, saying that by the statutes Vallandigham was a prisoner of state, and that the Secretary of War was bound to report him as such to the circuit judge of the district in which his supposed offenses were committed, to be regularly tried by the civil tribunal. But the principal criticism was, of course, confined to the ranks of the opposition. Their newspapers and public men vied with one another in a chorus of condemnation. To a meeting, held in Albany on the 16th of May, Governor Seymour wrote:

It is an act which has brought dishonor upon our country; it is full of danger to our persons and our homes; it bears upon its front a conscious violation of law and justice. . . . 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 trial, save one which was a mockery. . If this which insulted as well as wronged. proceeding is approved by the Government, and sanctioned by the people, it is not merely a step towards 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 action of the Administration will determine, in the minds of more than onehalf of the people of the loyal States, whether the war is waged to put down rebellion at the South, or destroy free institutions at the North. We look

for its decision with most solemn solicitude.

The meeting to which Governor Seymour sent this passionate address passed a series of resolutions insisting upon their loyalty and the services they had rendered the country, but demanding that the "Administration shall be true to the Constitution, shall recognize and maintain the rights of the States and the liberties of the citizen, shall everywhere outside the lines of military occupation and the scenes of insurrection exert all its powers to maintain the supremacy of the civil over military law"; and in view of these principles they denounced "the recent assumption of a military commander to seize and try a citizen of Ohio, Clement L. Vallandigham, for no other reason than words addressed to a public meeting in criticism of the military orders of that general." The resolutions further set forth that such an assumption of military power strikes a fatal blow at the supremacy of law. They enumerated the provisions of the Constitution defining the crime of treason and the defenses to which those accused of that crime are entitled, and said " that these safeguards of the rights of the citizen against the pretensions of arbitrary power were intended more especially for his protection in times of civil commotion." They further resolved:

That in the election of Governor Seymour the people of this State, by an emphatic majority, declared their condemnation of the system of arbitrary arrests, and their determination to stand by the at a citizen of Ohio as aimed at the rights of every Constitution. And that, regarding the blow struck citizen of the North, they denounce it as against the spirit of our laws and Constitution, and most earnestly call upon the President of the United States to reverse the action of the military tribunal which has passed a cruel and unusual punishment upon stitution, and to restore him to the liberty of which the party arrested, prohibited in terms by the Conhe has been deprived.

President and received his most careful conA copy of these resolutions was sent to the sideration. He answered on the 12th of June, in a letter which demands the close perusal of every student of our history. He accepted in

the beginning, and thanked the meeting for, the resolutions expressing the purpose of sustaining the cause of the Union despite the folly and wickedness of any administration. He referred to the safeguards of the Constitution for the defense of persons accused of treason, and contended that these provisions of the Constitution had no application to the case in hand. The arrests complained of were not made for the technical crime of treason. He then proceeded, in language so terse and vigorous that it is difficult to abridge a paragraph without positive mutilation, to describe the circum stances under which this rebellion began, and the hopes of the insurgents, which were founded upon the inveterate respect of the American people for the forms of law.

Prior to my installation here [he said] it had been inculcated that any State had a lawful right to secede from the National Union, and that it would be expedient to exercise the right whenever the devoto their own liking. I was elected contrary to their liking; and, accordingly, so far as it was legally possible, they had taken seven States out of the Union, had seized many of the United States forts, and had fired upon the United States flag, all before I was inaugurated, and, of course, before I had done any official act whatever. The rebellion thus begun soon ran into the present civil war; and, in certain respects, it began on very unequal terms between the parties. The insurgents had been preparing for it for more than thirty years, while the Government had taken no steps to resist them. The former had carefully considered all the means which could be turned to their account. It undoubtedly was a wellpondered reliance with them that in their own unrestricted efforts to destroy Union, Constitution, and law all together the Government would, in a great degree, be restrained by the same Constitution and law from arresting their progress. Their sympathizers pervaded all departments of the Government and nearly all communities of the people. From this material, under cover of "liberty of speech,” "liberty of the press," and "habeas corpus," they hoped to keep on foot amongst us a most efficient corps of spies, informers, suppliers, and aiders and abettors of their cause in a thousand ways. They knew that in times such as they were inaugurating, by the Constitution itself, the "habeas corpus" might be suspended; but they also knew they had friends who would make a question as to who was to suspend it; meanwhile their spies and others might remain at large to help on their cause. Or if, as has happened, the Executive should suspend the writ, without ruinous waste of time, instances of arresting innocent persons might occur, as are always likely to occur in such cases, and then a clamor could be raised in regard to this, which might be at least of some service to the insurgent cause. It needed no very keen perception to discover that part of the enemy's programme, so soon as, by open hostilities, their machinery was fairly put in motion. Yet, thoroughly imbued with a reverence for the guaranteed rights of individuals, I was slow to adopt the strong measures which by degrees I have been forced to regard

tees of the doctrine should fail to elect a President

as being within the exceptions of the Constitution, and as indispensable to the public safety. Nothing is better known to history than that courts of justice are utterly incompetent to such cases. Civil courts are organized chiefly for trials of individuals, or, at most, a few individuals acting in concert, and this in quiet times and on charges of crimes well defined in the law. Even in times of peace bands of horse-thieves and robbers frequently grow too numerous and powerful for the ordinary courts of justice. But what comparison in numbers have such bands ever borne to the insurgent sympathizers, even in many of the loyal States? Again, a jury too frequently has at to hang the traitor. And yet again, he who dissuades least one member more ready to hang the panel than one man from volunteering, or induces one soldier to desert, weakens the Union cause as much as he who kills a Union soldier in battle. Yet this dissuasion or inducement may be so conducted as to be no defined crime of which any civil court would take cognizance.

He then applied to the case in hand the clear provision of the Constitution that "the privilege of the writ of habeas corpus shall not be suspended unless, when in case of rebellion or invasion, the public safety may require it," and went on to say:

This is precisely our present case - a case of rebellion wherein the public safety does require the suspension. Indeed, arrests by process of courts and arrests in cases of rebellion do not proceed altogether upon the same basis. The former is directed at the small percentage of ordinary and continuous perpetration of crime, while the latter is directed at sudden and extensive uprisings against the Government, which, at most, will succeed or fail in no great length of time. In the latter case arrests are made, not so much for what has been done as for what probably would be done. The latter is more for the preventive and less for the vindictive than the former. In such cases the purposes of men are much more easily understood than in cases of ordinary crime. The man who stands by and says nothing when the peril of his Government is discussed cannot be misunderstood. If not hindered, he is sure to help the enemy; much more if he talks ambiguously-talks for his country with "buts" and "ifs" and "ands." Of how little value the constitutional provisions I have quoted will be rendered, if arrests shall never be made until defined crimes shall have been committed, may be illustrated by a few notable examples. General John C. Breckinridge, General Robert E. Lee, General Joseph E. Johnston, General John B. Magruder, General William B. Preston, General Simon B. Buckner, and Commodore Franklin Buchanan, now occupying the very highest places in the rebel war service, were all within the power of the Government since the rebellion began, and were nearly as well known to be traitors then as now. Unquestionably, if we had seized and held them, the insurgent cause would be much weaker. But no one of them had then committed any crime defined in the law. Every one of them, if arrested, would have been discharged on habeas corpus were the writ allowed to operate. In view of these and similar cases, I think the time not

unlikely to come when I shall be blamed for having made too few arrests rather than too many.

Referring to the charge made in the resolutions that Mr. Vallandigham was arrested for no other reason than words addressed to public meetings in criticism of the course of the Administration, Mr. Lincoln said:

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 [he went on] Mr. Vallandigham 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 military constitutional jurisdiction to lay hands upon him.

If it could be shown that his arrest was made on mistake of fact, the President would be glad to correct it. But, he said:

Long experience has shown that armies cannot be maintained unless desertion shall be punished by the severe penalty of death. The case requires, and the law and the Constitution 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 until 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 pun

ish him if he shall desert. I think that in such a case to silence the agitator and to save the boy is not only constitutional, but, withal, a great mercy.

He then stated clearly his belief that certain proceedings are constitutional when, in case of rebellion or invasion, the public safety requires them, which would not be constitutional when, in absence of rebellion or invasion, the public safety does not require them.

The Constitution itself [he said] makes the distinction, and I can no more be persuaded that the Government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one. Nor am I able to appreciate the danger apprehended by the meeting that the American people will, by means of military arrests during the Rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and habeas corpus, throughout the indefinite peaceful future, which I trust lies before them, any more than I am able to believe that a man could contract so strong an appetite for emetics, during temporary illness, as to persist in feeding upon them during

the remainder of his healthful life.

The President parried the political thrust in the resolutions by reminding the gentlemen of Albany that although they addressed him as

"Democrats," not all Democrats were of their way of thinking.

He on whose discretionary judgment Mr. Vallandigham was arrested and tried is a Democrat, having no old party affinity with me; and the judge who rejected the constitutional view expressed in these resolutions by refusing to discharge Mr. Vallandigham on habeas corpus is a Democrat of better days than these, having received his judicial mantle at the hands of President Jackson. And still more, of all those Democrats who are nobly exposing their lives and shedding their blood on the battlefield, I have learned that many approve the course taken with Mr. Vallandigham, while I have not heard of a single one condemning it.

The President fortified his argument by an incident of pertinent history especially adapted to touch the sympathies of Democrats-the arbitrary arrests made by General Jackson at New Orleans; his defiance of the writ of habeas corpus, and his imprisonment of the judge who had issued it. Near the close of this strong and adroit defense of the action of Burnside the President made a remarkable admission in these words:

And yet let me say that in my own discretion I do not know whether I would have ordered the

arrest of Mr. Vallandigham. While I cannot shift the responsibility from myself, I hold that, as a general rule, the commander in the field is the better judge of the necessity in any particular case. It gave me pain when I learned that Mr. Vallandithere should have seemed to be a necessity for argham had been arrested,- that is, I was pained that resting him,—and it will afford me great pleasure to discharge him so soon as I can, by any means, believe the public safety will not suffer by it. Í further say that as the war progresses it appears to me, opinion and action, which were in great confusion at first, take shape and fall into more regular channels, so that the necessity for strong dealing with them gradually decreases. I have every reason to desire that it should cease altogether, and far from the least is my regard for the opinions and wishes of those who, like the meeting at Albany, declare their purpose to sustain the Government in every constitutional and lawful measure to suppress the rebellion. Still I must continue to do so much as may seem to be required by the public safety.

There are few of the President's state papers which produced a stronger impression upon the public mind than this. Its tone of candor and courtesy, which did not conceal his stern and resolute purpose; his clear statement of the needs of the country; his terse argument of his authority under the Constitution to suspend the writ of habeas corpus when, in case of rebellion, the public safety required it; his contrast of the venial crime of the simpleminded soldier boy, which was punished by

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