Clement Vallandigham Arrested, May 5, 1863

On May 5, 1863, Clement Vallandigham was arrested at his home as a violator of General Order Number 38, issued by General Ambrose Burnside.  Directed mainly at Confederate spies and Northern traitors, this order also warned that: "The habit of declaring sympathies for the enemy will no longer be tolerated in this department. Persons committing such offenses will be at once arrested."

On May 1, 1863, Vallandigham had spoken at a large Democratic Party rally at Mount Vernon, Ohio.  Aware that Burnside's men were in the crowd, Vallandigham attacked both the general and Lincoln. The former congressman declared that his right to speak was based on "General Order, No. 1, the Constitution of the United States." He lashed out at the "wicked, cruel, and unnecessary war." He spoke against the draft law, but did not go so far as to encourage men to disobey it. He also charged that "the men in power are attempting to establish a despotism in this country, more cruel and more oppressive than ever existed before."

Illustration of Vallandigham being arrested by soldiers

Vallandigham's enraged supporters burned the offices of the Dayton Journal, the Republican rival  to the Empire. 

Vallandigham was tried by a military court on May 6 and 7. His speech at Mount Vernon, Ohio was cited as the source of the arrest. He was charged by the Military Commission with 

"Publicly expressing, in violation of General Orders No. 38, from Head-quarters Department of the Ohio, sympathy for those in arms against the Government of the United States, and 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."

The specifications of the charge against Vallandigham were:

Declaring the present war "a wicked, cruel, and unnecessary war"; "a war not being waged for the preservation of the Union"; "a war for the purpose of crushing out liberty and erecting a despotism"; "a war for the freedom of the blacks and the enslavement of the whites"; stating "that if the Administration had so wished, the war could have been honorably terminated months ago"; that "peace might have been honorably obtained by listening to the proposed intermediation of France"; that "propositions by which the Northern States could be won back, and the South guaranteed their rights under the Constitution, had been rejected the day before the late battle of Fredericksburg, by Lincoln and his minions", meaning thereby the President of the United States, and those under him in authority; charging "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"; characterizing General Orders No. 38, from Headquarters Department of the Ohio, as "a base usurpation of arbitrary authority", inviting his hearers to resist the same, by saying, "the sooner the people inform the minions of usurped power that they will not submit to such restrictions upon their liberties, the better"; declaring "that he was at all times, and upon all occasions, resolved to do what he could to defeat the attempts now being made to build up a monarchy upon the ruins of our free government"; asserting "that he firmly believed, as he said six months ago, that the men in power are attempting to establish a despotism in this country, more cruel and more oppressive than ever existed before."

"All of which opinions and sentiments he well knew did aid, comfort, and encourage those in arms against the Government, and could but induce in his hearers a distrust of their own Government, sympathy for those in arms against it, and a disposition to resist the laws of the land."
During the trial, testimony was given by Union army officers who attended the speech in civilian clothes, that Vallandigham called the president "King Lincoln".  

He was sentenced to confinement in a military prison "during the continuance of the war" at Fort Warren.  

On May 11, 1863, an application for a writ of habeas corpus was filed in federal court for Vallandigham by former Ohio Senator George Pugh.  Judge Humphrey H. Leavitt of the Circuit Court of the United States for the Southern District of Ohio upheld Vallandigham's arrest and military trial as a valid exercise of the President's war powers.  Congress had passed an act authorizing the president to suspend habeas corpus on March 3, 1863.

George Pugh

Controversy and protests ensued. On May 16, 1863, there was a meeting at Albany, New York to protest the arrest of Vallandigham.  A letter from Governor Horatio Seymoour of New York was read to the crowd: Seymour charged that "military despotism" had been established.  Resolutions were adopted and sent to President Lincoln.

On May 26, Vallandigham was taken to Confederates south of Murfreesboro, Tennessee, and there entered Southern lines. 

Outraged at his treatment, Ohio state Democrats, by a vote of 411 -11, nominated Vallandigham for governor at their  June 11 convention.

Vallandigham was escorted by the Confederates to Wilmington, North Carolina, and shipped out to Bermuda, arriving there on June 17. 

In response to the public letter issued at the meeting of angry Democrats in Albany, Lincoln's letter of June 12, 1863, explains his justification for supporting the court-martial's conviction. President Lincoln wrote the "Birchard Letter" of June 29, 1863, to several Ohio congressmen, offering to revoke Vallandigham's deportation order if they would agree to support certain policies of the Administration.  Lincoln, who considered Vallandigham a "wily agitator", was wary of making him a martyr to the Copperhead cause and thus ordered him sent through the enemy lines to the Confederacy. Although he altered Vallandigham's sentence, Lincoln did not repudiate Burnside's military actions against a civilian.

Vallandigham traveled to Canada, arriving at Niagara Falls on July 5.  from there and Windsor, Ontario, conducted his campaign for the Ohio governorship. Candidate for lieutenant governor George Pugh represented Vallandigham's views at rallies and in the press. 

John Brough

Lincoln interested himself in the election, endorsed Republican candidate John Brough, downplayed the illegalities of a civilian's arrest and trial by military authorities, and claimed that a vote for the Democratic contender was "a discredit to the country." In the election of October 13. 1863, Brough defeated Vallandigham 288,000 - 187,000.

On February 15, 1864, the Supreme Court announced it would refuse to hear the case, saying that it had no authority to review the proceedings of a martial law court.  The decision, Ex Parte Vallandigham, decreed that the Court could not issue a writ of habeas corpus in a military case.

With the election crisis passed, Lincoln and the military ignored Vallandigham's return, in disguise, to the United States on June 14, 1864.  He established residence in 0hio, attended the August 1864 national Democratic convention in Chicago, and helped construct the disastrous "peace" plank in presidential candidate George B. McClellan's platform.

In postwar years the Democratic party declared him persona non grata at its 1866 Philadelphia convention, a meeting of old Federals and recently reconstructed Southern Democrats, where it was felt his presence was disruptive.  After he lost a bid in 1867 for election to the state senate, he resumed his law practice. 

Golden Lamb, Lebanon, Ohio

At the Golden Lamb Hotel in Lebanon, Ohio, on June 16, 1871, a gun went off while he was demonstrating to other attorneys how a defendant's supposed victim may have accidentally shot himself. He died there the following day.

Vallandigham is best remembered for the Democratic campaign slogan he created in May 1862: "The Constitution as it is, the Union as it was." 

Inspired by the story of Vallandigham's banishment and his remark at that time that he did not care to live in a country where Lincoln was president, Edward Everett Hale wrote The Man Without a Country (1863).