Burnside's order was in strict accordance with this authority, and he had no ultimate responsibility for the policy thus proclaimed. He was simply reiterating and carrying out in his department the declared purpose of the administration. Even in the matter of newspaper publications, his predecessor, General Wright, had felt obliged, upon Bragg and Kirby Smith's invasion of Kentucky, to put a stop to treasonable editorials and to the publication of military information likely to benefit the enemy. He issued a circular on September 13, 1862, notifying the publishers of the Cincinnati papers that the repetition of such offence would be immediately followed by the suppression of the paper and the arrest and confinement of the proprietors and writers. [Footnote: Official Records, vol. xvi. pt. ii. p. 514. See a characteristic letter by Sherman on this subject, Id., vol. xxxi. pt. i. p. 765: "Now I am again in authority over you, and you must heed my advice. Freedom of speech and freedom of the press, precious relics of former history, must not be construed too largely. You must print nothing that prejudices government or excites envy, hatred, and malice in a community. Persons in office or out of office must not be flattered or abused. Don't publish an account of any skirmish, battle, or movement of an army, unless the name of the writer is given in full and printed. I wish you success; but my first duty is to maintain 'order and harmony.'" (To editors of "Memphis Bulletin.")] It is necessary to keep these facts in mind if we would judge fairly of Burnside's responsibility when it was his fortune to apply the rule to a case attracting great public attention.
THE VALLANDIGHAM CASE--THE HOLMES COUNTY WAR
Clement L. Vallandigham--His opposition to the war--His theory of reconstruction--His Mount Vernon speech--His arrest--Sent before the military commission--General Potter its president--Counsel for the prisoner--The line of defence--The judgment--Habeas Corpus proceedings--Circuit Court of the United States--Judge Leavitt denies the release--Commutation by the President--Sent beyond the lines--Conduct of Confederate authorities--Vallandigham in Canada--Candidate for Governor--Political results--Martial law--Principles underlying it--Practical application--The intent to aid the public enemy--The intent to defeat the draft--Armed resistance to arrest of deserters, Noble County--To the enrolment in Holmes County--A real insurrection--Connection of these with Vallandigham's speeches--The Supreme Court refuses to interfere--Action in the Milligan case after the war--Judge Davis's personal views--Knights of the Golden Circle--The Holmes County outbreak--Its suppression--Letter to Judge Welker.
Clement L. Vallandigham had been representative in Congress of the Montgomery County district of Ohio, and lived at Dayton. He was a man of intense and saturnine character, belligerent and denunciatory in his political speeches, and extreme in his views. He was the leader in Ohio of the ultra element of opposition to the administration of Mr. Lincoln, and a bitter opponent of the war. He would have prevented the secession of the Southern States by yielding all they demanded, for he agreed with them in thinking that their demands for the recognition of the constitutional inviolability of the slave system were just. After the war began he still advocated peace at any price, and vehemently opposed every effort to subdue the rebellion. To his mind the war was absolutely unconstitutional on the part of the national government, and he denounced it as tyranny and usurpation. His theory seemed to be that if the South were "let alone," a reconstruction of the Union could be satisfactorily effected by squelching the anti-slavery agitation, and that the Western States, at any rate, would find their true interest in uniting with the South, even if the other Northern States should refuse to do so. Beyond all question he answered to the old description of a "Northern man with Southern principles," and his violence of temper made it all a matter of personal hatred with him in his opposition to the leaders of the party in power at the North. His denunciations were the most extreme, and his expressions of contempt and ill-will were wholly unbridled. He claimed, of course, that he kept within the limits of a "constitutional opposition," because he did not, in terms, advise his hearers to combine in armed opposition to the government.
About the first of May he addressed a public meeting at Mount Vernon in central Ohio, where, in addition to his diatribes against the Lincoln administration, he denounced Order No. 38, and Burnside as its author. His words were noted down in short-hand by a captain of volunteers who was there on leave of absence from the army, and the report was corroborated by other reputable witnesses. He charged the administration with designing to erect a despotism, with refusing to restore the Union when it might be done, with carrying on the war for the liberation of the blacks and the enslavement of the whites. He declared that the provost-marshals for the congressional districts were intended to restrict the liberties of the people; that courts-martial had already usurped power to try citizens contrary to law; that he himself would never submit to the orders of a military dictator, and such were Burnside and his subordinates; that if those in authority were allowed to accomplish their purposes, the people would be deprived of their liberties and a monarchy established. Such and like expressions, varied by "trampling under his feet" Order No. 38, etc., made the staple of his incendiary speech.
When the report was made to Burnside and he had satisfied himself of its substantial truth, he promptly accepted the challenge to test the legality of his order, and directed the arrest of Mr. Vallandigham. It was characteristic of him that he did not consult with his subordinates or with lawyers. He did not even act through my district organization, but sent his own aide-de-camp with a guard to make the arrest at Dayton. My recollection is that I did not know of the purpose till it was accomplished. His reason for direct action, no doubt, was that if there were many links in the chain of routine, there were multiplied chances of failure. He did not want to be baffled in the arrest, or to give the opportunity for raising a mob, which there would be if his purposes were to become known in advance,
The arrest was made in the early morning of the 5th of May, before dawn, and the prisoner was brought to Cincinnati. He was at first taken under guard to the Burnet House, where he breakfasted, and was then put in the military prison connected with the houses used as barracks for the troops in the city. A military commission had been ordered on the 21st of April from Department Headquarters for the trial of the classes of offenders named in Order No. 38, and of this commission Brigadier-General R. B. Potter of the Ninth Corps was President. General Potter was a distinguished officer throughout the war. He was a brother of Clarkson N. Potter, the prominent lawyer and Democratic member of Congress later, and both were sons of the Episcopal Bishop Potter of Pennsylvania. The character of the whole court was very high for intelligence and standing. Before this court Mr. Vallandigham was arraigned on the charge of publicly expressing sympathy with those in arms against the government, and uttering disloyal sentiments and opinions with intent to weaken the power of the government in its efforts to suppress the rebellion.
Vallandigham consulted with the Hon. George E. Pugh and others as his counsel, and then adopted the course of protesting against the jurisdiction of the court and against the authority for his arrest. His grounds were that he was not amenable to any military jurisdiction, and that his public speech did not constitute an offence known to the Constitution and laws. To avoid the appearance of waiving the question of jurisdiction, his counsel did not appear, though offered the opportunity to do so, and Mr. Vallandigham cross-examined the witnesses himself, and called those who testified for him. The question of fact raised by him was that he had not advised forcible resistance to the government, but had urged action at the elections by defeating the party in power at the polls. That he did not in terms advocate insurrection was admitted by the judge advocate of the court, but the commission were persuaded that the effect of his speech was intended and well calculated to be incendiary, and to arouse any kind of outbreak in sympathy with the armed enemies of the country. The trial ended on the 7th of May, but the judgment was not promulgated till the 16th, proceedings in habeas corpus having intervened. The finding of the court was that the prisoner was guilty, as charged, and the sentence was close confinement in Fort Warren, Boston harbor, during the continuance of the war.