June 1863–Democratic Party Leader Brought Before Military Court

By Gary Far­row, Danville His­tor­i­cal Society

A cartoon printed in England in 1864, showing Lincoln as the Federal Phoenix rising from the flames of American Democracy.

A car­toon printed in Eng­land in 1864, show­ing Lin­coln as the Fed­eral Phoenix ris­ing from the flames of Amer­i­can Democracy.

Ten­sions between national secu­rity and civil lib­er­ties are not an unfa­mil­iar topic to mod­ern day read­ers. So what led to a for­mer US Con­gress­man from Ohio and poten­tial can­di­date for gov­er­nor to be rousted out of his house at 2:30 AM on May 5, 1863 and arrested by the fed­eral troops?

Although Clement Val­landigham had lost his reelec­tion bid for the House the prior year, he was still a lead­ing light for the “Cop­per­heads,” the anti-war wing of the Demo­c­ra­tic Party. He had run afoul of Gen. Ambrose Burnside’s mid-April “Gen­eral Order Num­ber 38,” which stated that the “habit of declar­ing sym­pa­thies for the enemy would not be tol­er­ated in the Mil­i­tary Dis­trict of Ohio.” Offend­ers would be sub­ject to execution.

Burnside’s order was a man­i­fes­ta­tion of Pres­i­dent Lincoln’s procla­ma­tion ear­lier in the fall sus­pend­ing the writ of habeas cor­pus (the right to a speedy trial) for peo­ple who made state­ments mil­i­tat­ing against enlist­ments, drafts or engaged in any other dis­loyal prac­tice such as encour­ag­ing deser­tion. Those accused would be sub­ject to mar­tial law and tried by mil­i­tary com­mis­sions. The Supreme Court had ruled that only Con­gress had the power to sus­pend the writ of habeas cor­pus, but Lin­coln ignored the judi­cial branch and asserted the claim of “war pow­ers,” a con­cept for­eign to the Constitution.

Clement Vallandigham

Clement Val­landigham

In response, Val­landigham, who was a pro­po­nent of states’ rights, felt they had the right to secede. He believed that mil­i­tary con­quest of the South was uncon­sti­tu­tional and gave a speech on May 1 where he called the war “wicked, cruel, and unnec­es­sary,” one waged “for the free­dom of the blacks and the enslave­ment of whites.” He called Gen­eral Order Num­ber 38 “a base usurpa­tion of arbi­trary author­ity” and urged his audi­ence to resist. The for­mer Con­gress­man also asserted “that the Gov­ern­ment of the United States was about to appoint mil­i­tary mar­shals in every dis­trict, to restrain the peo­ple of their lib­er­ties, to deprive them of their rights and privileges.”

In addi­tion to the fact that the young democ­racy was strug­gling over its Con­sti­tu­tion and a state’s right to secede, what was going on here? The Union army was run­ning out of men at approx­i­mately the same time that Lin­coln had made the cal­cu­la­tion that only total war­fare would bring an end to the conflict.

In March of 1863, Con­gress approved the Enroll­ment Act which declared that all fit male cit­i­zens and aliens between the ages of twenty and forty-five were liable for mil­i­tary ser­vice upon the request of the Pres­i­dent. The Act stirred the pot and turned up the heat in a nation whose mil­i­tary adven­tures had always been manned by vol­un­teers. In addi­tion to impos­ing the first draft in Amer­i­can his­tory, the Enroll­ment Act cre­ated a new all-powerful exec­u­tive agency called the Provost Mar­shal Gen­eral Bureau, which by law extended into every North­ern con­gres­sional dis­trict to enforce and admin­is­ter the draft.

This cartoon deals with Habeas Corpus defined by the author of the blog Reflections of a Law Student as: “essentially a summons, requiring the prisoner to be taken before court to see whether the person’s detainment is legal. If the custodian does not have evidence or authority to detain the prisoner, an immediate release is ordered.” It is an old law, borrowed into our legal system, but in the case of Vallandigham and present-day terrorists, suspended supposedly for the good of the American public.

This car­toon deals with Habeas Cor­pus defined by the author of the blog Reflec­tions of a Law Stu­dent as: “essen­tially a sum­mons, requir­ing the pris­oner to be taken before court to see whether the person’s detain­ment is legal. If the cus­to­dian does not have evi­dence or author­ity to detain the pris­oner, an imme­di­ate release is ordered.” It is an old law, bor­rowed into our legal sys­tem, but in the case of Val­landigham and present-day ter­ror­ists, sus­pended sup­pos­edly for the good of the Amer­i­can public.

The Bureau was the nation’s first domes­tic intel­li­gence agency. Its ten­ta­cles reached not only into cities but into the rural coun­try­side where agents and spies kept tabs on any­one who might inter­fere with its mis­sion of imple­ment­ing a suc­cess­ful draft. In Bor­der States, which were geo­graph­i­cally part of the South but had remained in the Union, Lin­coln also had cit­i­zens brought before mil­i­tary tri­bunals for fear that jurors in a civil court would nul­lify pros­e­cu­to­r­ial ver­dicts because of south­ern sympathies.

Peo­ple through­out the North felt the thumb of the Gov­ern­ment in a way that they never had before. Vallandigham’s talk of “mil­i­tary dis­tricts” and the depri­va­tion of civil lib­er­ties had some resonance.

Days after Val­landigham was taken away in the mid­dle of the night, he was tried before a mil­i­tary com­mis­sion, found guilty and sen­tenced to prison at Fort War­ren for the dura­tion for the war. How­ever, these events put Lin­coln in a polit­i­cal bind. He saw Val­landigham as a legit­i­mate threat to national secu­rity, but he also risked giv­ing the accu­sa­tion of exec­u­tive over­reach cred­i­bil­ity. Lin­coln found a mid­dle way. Rather than send­ing him to prison, which would have been a form of mar­tyr­dom, Lin­coln exiled the for­mer con­gress­man to the South and out of his hair.

June 6, 1863 North Star–Vallandigham

The order to send Val­landigham South has been car­ried out. He arrived at Murfrees­boro, Tenn, on Sun­day after his sen­tence; and after some hours’ con­ver­sa­tion with Gen. Rose­craus and oth­ers, he was put into an open wagon and was con­ducted by an escort of cav­alry, to the out­posts of the Union army, and deliv­ered into the hands of the enemy accord­ing to Mr Lincoln’s fiat. The rebel pick­ets at first refused to receive him, but finally the Colonel com­mand­ing con­sented to his recep­tion, when Val­landigham thus addressed the guards – at the same time ask­ing their Fed­eral offi­cers who had him in charge to pay atten­tion to his words.

I am a cit­i­zen … of the United States of Amer­ica, sent within your lines against my will, and hope you will receive me as your prisoner.”

The rebel com­man­der then promised that he would send him to Shel­byville, Tenn at his ear­li­est con­ve­nience – which promise has been kept, as Rich­mond papers of the 28th announce that Mr. Val­landigham has arrived at Shel­byville. This dis­po­si­tion of Mr. V. is some­what lighter than the orig­i­nal sen­tence – incar­cer­a­tion in Fort War­ren; but the arbi­trary prin­ci­ple is the same; and the prece­dent thus estab­lished, will yet come back to plague its inventors.

After the war, Val­landigham resumed his polit­i­cal and legal career in Ohio, only to die at age 50 while rep­re­sent­ing a man accused of mur­der. He was attempt­ing to demon­strate to his legal team how the vic­tim had shot him­self. The lawyer rose from a kneel­ing posi­tion, took the pis­tol out of his pocket, and con­tin­ued to demon­strate how the tragedy might have occurred, which cul­mi­nated with him pulling the trig­ger. The gun was loaded.

In 1866, the Supreme Court ruled that sub­ject­ing cit­i­zens to a mil­i­tary trial in juris­dic­tions where civil­ian courts were func­tional was uncon­sti­tu­tional. This issue still rever­ber­ates today.






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