Constitutional Violation: Amendment One. Freedom of Speech Denied. Vallandigham Imprisoned in Ohio.
“From the beginning to the end of these proceedings law and justice were set at naught;…the President should have rescinded the sentence and released Vallandigham:…a large portion of the Republican press of the east condemned Vallandigham’s arrest and the tribunal before which he was arraigned.” James Ford Rhodes, historian and industrialist from Ohio
Clement L. Vallandigham was born July 29, 1820, in New Lisbon, Ohio. He was Scots-Irish on his mother’s side (Laird) and Flemish Huguenot on his father’s side (Van Landegham). Vallandigham was educated at New Lisbon Academy and Jefferson College in Canonsburg, Pennsylvania. He built a respected law practice and became a popular political speaker. His qualifications helped open the door for his election in 1845 as the Ohio State legislature’s youngest member. Vallandigham admired Southern character and honor; there was a personal aspect as well because the South (Stafford, Virginia) was part of his family lineage. He opposed a strong central government and slavery, but felt the Federal government should not interfere where it existed.
Vallandigham was a Jeffersonian States’ Rights Democrat who believed in interpreting the Constitution as it was written. He publicly denounced the Radical Republicans and opposed the 1857 Tariff. In a February 24, 1859, address to the House of Representatives he stated his belief that the legislation “was peculiarly a manufacturer’s tariff and a highly protective tariff too…He then referred to the manner in which the interests of his constituents and the farmers, especially the wool-growers of Ohio, had been disregarded in the Act of 1857.” Somewhat ironically, the 1857 agreement gave some degree of relief to the South and ruffled the feathers of Northern industrialists who almost immediately lobbied for an increase in tariff rates.
Comments by Vallandigham during the early stages of the war likely put him on the wrong side of the Lincoln Administration. In a February 3, 1862, speech delivered on the floor of the House of Representatives, Vallandigham criticized the Lincoln Administration’s Legal Tender Act. From an economic and historical standpoint, he saw the creation of a fiat money system, i.e., greenbacks backed by nothing, as a risky maneuver relative to helping finance the war on the South. Vallandigham accurately predicted this Act would result in ”… high prices, extravagant speculation, enormous sudden fortunes, immense fictitious wealth, general insanity. These belong to all inordinate and excessive paper issues.”
During the war, Vallandigham served as U.S. Representative from Ohio, which was part of a military district that included Indiana and Illinois. The district was under the command of Ambrose Burnside, a Union general with a record of mediocrity as a field commander. Vallandigham was labeled as a Peace Democrat and a Copperhead as he espoused the importance of individual liberty, constitutional government, and the dangers of increased centralization. His vocal criticism of the war against the South made many enemies.
Vallandigham was troubled by the Lincoln Administration’s claim of changing the goal of the war from preservation of the Union to suddenly being a quest to end slavery. He voiced his concerns to Congress on January 14, 1863:
The war for the Union is in our hands, a most bloody and costly failure. The President confessed it on the September 22…War for the Union was abandoned; war for the Negro openly began…I trust I am not “discouraging enlistments.” If I am, then arrest Lincoln and Stanton and Halleck… But can you draft again? …Ask Massachusetts… Ask not Ohio, nor the Northwest. She thought you were in earnest and gave you all, all-more than you demanded… But ought this war to continue? I answer, No, not a day, not an hour. What then? Shall we separate? Again I answer no, No, no, no! What then? …Stop fighting. Make an armistice. Accept at once the friendly foreign mediation and begin the work of reunion, we shall yet escape.
Vallandigham recognized military failure as a catalyst for this diversionary political tactic, arising on the heels of several Northern military defeats and increasing apprehension that a foreign power (beyond the Vatican’s vague affirmation) might officially recognize the Confederacy. According to Illinois politician and U.S. soldier John A. Logan (aka Black Jack Logan), there was a gathering at Springfield, Illinois, (Lincoln’s home) of almost 100,000 Vallandigham, Anti-War, Peace Democrats voicing their opposition to the invasion of the South and calling for an end to the war.
On April 13, 1863, Burnside issued General Order Number 38, which stated that free speech would not be tolerated if that speech were in defense of the South. Burnside felt Lincoln’s September 24, 1862, suspension of habeas corpus gave him the authority to issue his order.
During a May 1, 1863, speech, Vallandigham described the Union war as “wicked, cruel, and unnecessary.” He went on to say this “was a ‘war for the purpose of crushing out liberty and erecting a despotism’” and he called for Lincoln’s removal from office. Unknown to Vallandigham, Burnside had sent two captains, dressed in civilian clothing, to Mount Vernon, Ohio, to listen to this speech where he ridiculed the unconstitutional activities of “King Lincoln” and publicly denounced Burnside’s order. In retaliation for his comments, officers surrounded, and then broke into Vallandigham’s house at 2:00 A.M. on May 5th. He was arrested and sent to face trial before a military commission. Vallandigham was charged with violation of Burnside’s General Order Number 38, by expressing disloyal opinions that weakened government efforts to suppress a rebellion. He was also accused of illegally discouraging military enlistments. Though military commissions are not designed to handle civilians and the regular civilian courts were in operation at the time, Vallandigham was placed before a military tribunal (based on Lincoln’s suspension of habeas corpus). Trying a civilian in a military court typically indicates the verdict has been predetermined or as Daniel Webster, an opponent of such activities, stated, “military courts are organized to convict.” Lincoln favored the use of military courts for civilians in such circumstances.
In response to the arrest, on May 6, 1863, a crowd of 500-600 gathered at the newspaper office of the pro-Republican Dayton Journal; Vallandigham had lived in Dayton since 1847. They took over the building and burned it to the ground. The fire spread “and all the property from the south end of the Phillips House to the middle of the square was destroyed. All the telegraph lines in the city were cut down and destroyed.” It was also reported that the Xenia Road Bridge had been destroyed.
The New York Herald demanded a release of Vallandigham in its May 24, 1863, edition. Burnside disallowed circulation of the Herald and also ordered suppression of the anti-Republican Chicago Times on June 3, 1863. Under Burnside, not only did infringements of liberty increase, the death penalty was prescribed for certain offenses. Although violations of individual civil and constitutional rights were common, Vallandigham’s case was the highest profile as he was considered the quintessential Copperhead.
During his confinement, a letter in Vallandigham’s handwriting emerged from his prison cell with the comment: “I am here in a military bastille for no other offense than my political opinions…I am a Democrat-for the Constitution, for law, for Union, for liberty—this is my only crime.” Vallandigham was tried in Cincinnati and initially convicted of being disloyal to the U.S. and sympathetic to the Confederacy. He was sentenced to two years at the military prison in Fort Warren, located at the entrance of Boston Harbor. George Pugh, Vallandigham’s attorney, appealed the verdict to Federal Judge Humphrey Leavitt based on the lack of jurisdiction of a military tribunal combined with the fact his client’s free speech and habeas corpus rights had been violated. Leavitt would not budge and the verdict was left intact.
Vallandigham was sentenced to close confinement for the duration of the war; however, there was such a public outcry in both North and South “that Lincoln commuted the sentence to banishment—a penalty not before known to the country, and ‘not for deeds alone, but for words spoken,’ to use the language in which it was denounced by John Sherman, and these were words that had been spoken in public debate and received with wild applause by thousands of his constituents.”
Lincoln had sought to minimize political damage from Burnside’s illegal arrest and it was Burnside himself who suggested Vallandigham be sent to General William S. Rosecrans, commanding the Army of the Cumberland, at Murfreesboro, Tennessee. From there, Vallandigham was sent into Confederate territory, with the warning that he would be imprisoned if he returned to Union soil.
In early June of 1863, Vallandigham was banished to the South although Lincoln refused to admit the Confederate States existed as a separate country. Lincoln had initially supported Burnside’s arrest of Vallandigham; however, it is unclear if he knew ahead of time that it would take place. Lincoln was very aware of the often vocal, pesky, Ohio Copperhead whom he referred to as this “Wily agitator” and his initial support of Burnside’s actions exacerbated the situation. This arrest and banishment was not entirely unprecedented in American history; it echoed the 1798 Alien and Sedition Acts, under President Adams, where verbal criticism of specific individuals in government was prohibited and punished, sometimes severely.
Though the arrest and harsh treatment of Vallandigham was endorsed in many Republican circles, there were others who were alarmed, including some who opposed his peace efforts. Denying Vallandigham his First Amendment and habeas corpus rights ignited a firestorm of opposition and indignant reactions. The Detroit Free Press responded:
We have never been champions of Mr. Vallandigham. In many particulars we have disagreed with him in opinion; but we have seen nothing in his course which he was not permitted by the [C]onstitution and laws to do; but even if he is guilty of any offense, he is entitled to a trial by a jury of his country and by the law of the land. If, in his case, a military court—the most offensive of tribunals to a free people—is allowed to usurp the office and functions of these, we will be justified in asserting that the worst apprehensions of the designs of the administration are fulfilled, and that American liberty is so dead, that even its forms are no longer observed.
Even a portion of the Republican press of the East condemned the whole affair. For example, the anti-slavery, pro-Republican, New York Evening Post referenced Burnsides’ subversion of democratic government by stating:
[N]o governments and no authorities are to be held above criticism, or even denunciation. We know of no other way of correcting their faults, spurring on their sluggishness, or restraining their tyrannies, than by open and bold discussion. How can a popular Government, most of all, know the popular will, and guide its course in the interests of the community, unless it be told from time to time what the popular convictions and wishes are?
The New York Daily Tribune, another anti-slavery Republican newspaper, simultaneously criticized the beliefs of Vallandigham (though they misstated some of his views) and the tactics of the Lincoln Administration:
Vallandigham [was] a Pro-Slavery Democrat of an exceedingly coppery hue…[I]f there were penalties for holding irrational, unpatriotic and inhuman views with regard to political questions, he would be one of the most flagrant offenders. But our Federal and State Constitutions do not recognize perverse opinions, nor unpatriotic speeches, as grounds of infliction.
The list of prominent individuals protesting Vallandigham’s arrest included Wilbur Storey, Editor of the Chicago Times; Gideon Welles, Union Secretary of the Navy; Erastus Corning, New York businessman; and Horatio Seymour, Governor of New York. “The Allentown Democrat in its edition of June 10, 1863, decried Vallandigham’s treatment calling it unconstitutional. There were rallies in Buffalo, Newark, N.J., New York City and Philadelphia, according to the newspaper, defending Vallandigham’s right of free speech.”
There were also protests in Vallandigham’s home State of Ohio. At the Democratic State Convention on June 11, 1863, prominent party members wrote a lengthy plea for Lincoln to revoke the banishment. Vallandigham was nominated for governor of Ohio at the convention. Many Ohioans voiced their displeasure with Lincoln, calling him a usurper and a despot. George Pugh, running for Lieutenant Governor in Ohio, delivered a scathing and cynical address on August 15, 1863, commenting:
Beyond the limits and powers confided to him by the Constitution, he is a mere County court lawyer, not entitled to any obedience or respect, so help me God [Cheers and cries of ‘Good.’] And when he attempts to compel disobedience beyond the limits of the Constitution by bayonets and by swords, I say that he is a base and despotic usurper, whom it is your duty to restrict by every possible means if necessary, by force of arms. [Cheers and cries ‘That’s the talk.’] If I must have a despot, if I must be subject to the will of any one man, for God’s sake let him be a man who possesses some great civil or military virtues. Give me a man eminent in council, or eminent in the field, but for God’s sake don’t give me the miserable mountebank who at present exercises the office of President of the United States.
Though he felt the Confederacy should be recognized as a legitimate entity, Vallandigham did not support Southern Independence. He favored returning the Southern States to the Union through peaceful negotiation instead of military coercion. This placed Vallandigham and his Confederate hosts in an awkward position. Remaining in the South for only a few weeks, Vallandigham was allowed to leave and work his way back home. He ran the blockade to Bermuda and moved on to Halifax before finally settling in Windsor, Ontario, Canada, where he ran unsuccessfully for governor.
Vallandigham consistently represented the principles of Ohio’s Peace Democrats; mobs rioted in his support, and constant efforts were made to have him returned to Ohio. Seemingly from out of nowhere, on June 15, 1864, Vallandigham appeared at Hamilton and Dayton, Ohio, denouncing Lincoln and his actions and spitting upon General Order Number 38.
This time, the Lincoln Administration made no attempts to have him arrested. Vallandigham, along with his friend and supporter, Dr. John McElwee, the editor of the Hamilton True Telegraph, insisted the 1864 Democratic Party Platform include a declaration that the war was a failure and that there should be an immediate end to hostilities. Their incessant advocacy of peace possibly backfired during the latter stages of the war. Significant Northern victories shifted popular sentiment away from the Democrats, and the North, with a reenergized morale, could see victory within their grasp, given the depleted manpower and resources of the Confederacy. Vallandigham’s last-ditch effort at peace was an unsuccessful appeal to Horace Greeley to help end the war.
Lincoln’s death brought great sadness to Vallandigham; he feared the Radical Republicans would respond with even greater retribution on the Southern people. Also, after the war, Vallandigham’s political success waned. Initially, he stood against Black voting rights and equality. After losing a couple of post-war elections based on his anti-reconstruction platform, Vallandigham returned to his law practice. Realizing the situation of the country under Republican control, he moderated his views and advocated a policy called New Departure, a program of burying the issues of the war and moving on. Vallandigham accepted that reconstruction was a fait accompli and the logical course was to work for the benefit of all citizens. He directed his efforts toward joining Democrats and disgruntled Republicans into what became the Liberal Republican Party in 1872.
Clement L. Vallandigham died in 1871 of an accidental self-inflicted gunshot wound. While defending his client in a murder case, he attempted to show the victim had actually killed himself but the demonstration went awry and he accidentally shot himself, suffering a tragic demise before his well-intentioned political efforts came to fruition. James W. Wall, a former New Jersey senator who had also been imprisoned by Union authorities during the war, performed his eulogy.
Vallandigham’s legacy factored into the short story, The Man Without a Country, which appeared in the Atlantic Monthly in August 1863. Written by Unitarian Minister Edward Everett Hale, the story was based on the life of Philip Nolan. Hale was disturbed by Vallandigham’s actions and referenced the legacy of Nolan, who had been tried and convicted of treason in 1807. Nolan was placed on a boat and banished to the sea, with any news of events in America withheld from his sight. As time passed, Nolan decided he loved his country despite its government’s flaws. [Hale published the short story in 1863 as a way to support Lincoln’s war and to encourage allegiance to the central government.]
 Charles L.C. Minor, The Real Lincoln (Harrisonburg, Virginia: Sprinkle Publications, 1992), 171. Original source: James Ford Rhodes, History of the United States, Vol. IV, 248.
 Rev. James Laird Vallandigham, A Life of Clement L. Vallandigham (Baltimore: Turnbull Brothers, 8 North Charles Street, 1872), 107, The Library of Congress Internet Archive, https://archive.org/stream/lifeofclementlva00vall#page/106/mode/2up, (Accessed April 24, 2016).
 In autumn of 1859, Vallandigham questioned John Brown at Harper’s Ferry, after his arrest. From the conversation, Vallandigham deduced Brown was a pawn in a large-scale conspiracy. Brown’s activities, eventually ruled as treason against the Commonwealth of Virginia, were financed primarily by the Secret Six—New Englanders that included Gerrit Smith, Thomas Wentworth Higginson, Theodore Parker, Samuel Gridley Howe, Franklin Benjamin Sanborn and George Luther Stearns.
 Thomas J. DiLorenzo, “The Real Reason Why Lincoln Imprisoned and Deported a Democratic Congressman,” LewRockwell.com, http://www.lewrockwell.com/lrc-blog/the-real-reason-why-lincoln-imprisoned-and-deported-a-democratic-congressman/, (Accessed April 24, 2016).
 Minor, 169.
 “Civil War Tested Lincoln’s Tolerance for Free Speech,” First Amendment Center, February 11, 2009, http://www.firstamendmentcenter.org/civil-war-tested-lincolns-tolerance-for-free-speech-press, (Accessed April 24, 2016).
 George Edmonds, Facts and Falsehoods Concerning the War on the South 1861-1865 (Wiggins, Mississippi: Crown Rights Book Company Liberty Reprint Series, 1997), 211.
 “The Arrest of Vallandigham,” Montgomery County, Ohio Genealogy and History, Genealogy Trails, http://genealogytrails.com/ohio/montgomery/news_crime.html, (Accessed April 24, 2016).
 Edgar J. McManus and Tara Helfman, Liberty and Union: A Constitutional History of the United States, Concise Edition (New York, New York: Routlegde, an Imprint of the Taylor & Francis Group, 2014), 207.
 Minor, 170-171. Original source: Rhodes, History of the United States, Vol. IV, 247.
 Frank J. Williams, “When Albany Challenged the President,” New York State Archives, Winter 2009, http://nysa32.nysed.gov/apt/magazine/archivesmag_winter09_Williams.pdf, (Accessed April 24, 2016).
 Michael Kent Curtis, “Lincoln, Vallandigham and Anti-war Speech in the Civil War,” William and Mary Bill of Rights Journal, Volume 7, Issue 1, Article 3, 1998, 138, http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1428&context=wmborj, (Accessed April 24, 2016).
 Ibid., 145.
 Ibid., 146.
 J.D. Malone, “June 10, 1863: Arrest of Copperhead angers The Allentown Democrat,” Lehigh Valley’s Newspaper The Morning Call, June 6, 2013, http://articles.mcall.com/2013-06-06/news/mc-pa-153rd-pennsylvania-volunteers-gettysburg-150-20130606_1_allentown-democrat-copperheads-war-effort, (Accessed April 24, 2016).
 Frank J. Williams, “Abraham Lincoln, Civil Liberties and the Corning Letter,” Rhode Island Superior Court, Roger Williams University Law Review, Volume 5, Issue 2, Article 1, Spring 2000, 336, http://docs.rwu.edu/cgi/viewcontent.cgi?article=1132&context=rwu_LR, (Accessed April 24, 2016).