Michael Kent Curtis
Wake Forest University

At 2:40 a.m. on May 5, 1863, 150 union soldiers arrived at the home of Clement L. Vallandigham. Vallandigham was an Ohio Democratic politician and former congressman. When Vallandigham refused to let them in, the soldiers broke down his doors, arrested him, and put him on a heavily guarded train for Cincinnati. There Vallandigham was tried before a military commission. He was prosecuted for an anti-war speech he had made to a Democratic rally a few days before. In his speech Vallandigham had described the Civil War as “wicked, cruel, and unnecessary;” as “a war to crush out liberty;” a war “for the freedom of the blacks and the enslavement of whites.”

The Vallandigham speech was not alleged to have violated any law passed by Congress. Instead he was charged with violating General Order 38 issued by union General Burnside whose area of command included Ohio. Ohio was outside the area of military conflict. The Burnside order provided that “declaring sympathy for the enemy will not be allowed in this department” and that express or implied treason would be punished.

Burnside had sent soldiers in plain clothes to the Democratic rally where they took notes on Vallandigham’s speech. According to these witnesses Vallandigham said he did not counsel resistence to the military or civil law. Instead the people should throw king Lincoln from his throne at the next election. Contemporary press accounts say Valladigham was telling people they were required to obey the law and the draft.

In his speech Vallandigham said his right to speak came not from General Order 38 but from General Order No. 1-the Constitution. General Order 38 was an unconstitutional usurpation. He said people should seek redress at the polls.

Vallandigham had been charged by General Burnside; Burnside picked the members of the military commission. The commission promptly convicted. Vallandigham was sentenced to hard labor. Lincoln changed the sentence to exile to the Confederacy.

Vallandigham made his way to Wilmington, NC, boarded a blockade runner, and landed in Canada. Democrats in Ohio nominated him for governor and Vallandigham conducted his political campaign from Canada. The election came after union victories at Gettysburg and Vicksburg. Vallandigham was resoundingly defeated.

After the military arrest and trial of Vallandigham, General Burnside suppressed the Chicago Times newspaper. Both actions produced massive protests.

The defense of the Vallandigham arrest by the administration’s supporters was simple. The nation was facing a gigantic rebellion. In such cases the president had the power to suspend the writ of habeas corpus. As commander in chief he could take any and all actions he thought necessary to promote success in the war. These included trials of citizens by military tribunals in areas remote from the field of battle. Vallandigham’s speech had a bad tendency. Those who heard the war was wicked might be more inclined to dessert or resist the draft. Suspension of civil liberties was a temporary measure required by the war.

The critics of the arrest argued that suspension of the writ was not justified where no battle raged and civil courts were functioning. Indeed in such areas a Congressional statute provided that political prisoners were to be indicted before the end of the grand jury session or released on taking an oath of allegiance. (The Lincoln administration treated the law as inapplicable to military commissions.)

Even if suspension of the writ were justified, critics insisted suspension at most justified holding civilians until they had a civil trial or were released. It did not authorize military trials of civilians in violation of the provisions of the Bill of Rights-grand jury indictment, jury trial, right to counsel, etc. Nor did the power to suspend the writ justify suppression of free speech guarantees.

The reaction to the Vallandigham arrest was widespread public protest. The protest featured an appeal to the people about the meaning of the Constitution. Critics insisted free speech was essential to democratic government-government based on the will of the people. Government officials were merely agents who had temporarily been entrusted with governmental power. The people had a continuing right to decide to change course and to elect new servants. People liable to be drafted and killed or to have those things happen to their friends and loved ones, had a right to debate whether the war should continue and on what terms. Elections without free speech-without hearing all sides-were a mockery. The idea that the president could do whatever he thought necessary prove too much. A president who had power to suspend free speech could suspend elections as well as free speech.

The protests had a substantial effect. Initially, Lincoln had left decisions about military arrests to military commanders. But after massive protests, in private he reined in his generals.

Publicly, however, Lincoln defended the Vallandigham arrest. In public, Lincoln and his cabinet supported the arrest as necessary to the war effort. In private, they doubted it was necessary or useful. In his public defense Lincoln suggested that the bad tendency of anti war speech justified suppressing it. Lincoln even implied that silence in the face of disloyal sentiments might justify punishment.

The proceedings of the Vallandigham military trial were made public. As a result, when Lincoln contended that Vallandigham was tried because “he was laboring with some effect to prevent the raising of troops and encourage desertions” critics were able to point out that Vallandigham was not charged with this offense and indeed had explicitly counseled against such conduct. In response, Lincoln admitted that he did not know that Vallandigham did so in so many words, but insisted that this was the tendency of his speeches. The constitutional guarantees of public trial and jury trial are important safeguards against political abuse.

There is always the danger that people will use times of genuine crisis to advance narrow partisan agendas. In the case of the Sedition Act, John Adams’s secretary of state said the crisis with France would provide a glorious opportunity to destroy faction-meaning to destroy the Jeffersonian party. Genuine fears of slave revolts in the South were used to silence those who advocated emancipation by the Southern states. Though, Lincoln seems not to have been motivated by narrow political advantage, some who attacked anti-war speech had mixed motives. Republicans sought to expel an Ohio Congressman for a speech on the floor of the House in which he advocated recognizing the Confederacy. At the same time, Republicans were claiming the speech would undermine the military, they were reprinting copies for use as a campaign document.

Always suppress in war time and recovery. So relax. Rest of story.