By Gary Farrow, Danville Historical Society
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.
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.
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.