On the 9th of May Mr. Pugh made application to the United States Circuit Court, Judge Leavitt sitting, for a writ of habeas corpus directed to General Burnside, in order that the lawfulness of Mr. Vallandigham's arrest and trial might be tested. The court directed notice of the application to be given to the general, and set the 11th for the hearing. The case was elaborately argued by Mr. Pugh for the prisoner, and by Mr. Aaron F. Perry and the District Attorney Flamen Ball for General Burnside. The hearing occupied several days, and the judgment of the court was given on the morning of the 16th. Judge Leavitt refused the writ on the ground that, civil war being flagrant in the land, and Ohio being under the military command of General Burnside by appointment of the President, the acts and offences described in General Order No. 38 were cognizable by the military authorities under the powers of war.
General Burnside had awaited the action of the court, and now promulgated the sentence under the judgment of the military commission. Three days later (May 19th) the President commuted the sentence by directing that Mr. Vallandigham be sent "under secure guard, to the headquarters of General Rosecrans, to be put by him beyond our military lines, and that in case of his return within our line, he be arrested and kept in close custody for the term specified in his sentence." This was done accordingly. The Confederate officials adopted a careful policy of treating him courteously without acknowledging that he was one of themselves, and facilities were given him for running the blockade and reaching Canada. There he established himself on the border and put himself in communication with his followers in Ohio, by whom he was soon nominated for the Governorship of the State.
The case, of course, excited great public interest, and was, no doubt, the occasion of considerable embarrassment to the administration. Mr. Lincoln dealt with it with all that shrewd practical judgment for which he was so remarkable, and in the final result it worked to the political advantage of the National cause. Sending Vallandigham beyond the lines took away from him the personal sympathy which might have been aroused had he been confined in one of the casemates of Fort Warren, and put upon him an indelible badge of connection with the enemies of the country. The cautious action of the Confederates in regard to him did not tend to remove this: for it was very apparent that they really regarded him as a friend, and helped him on his way to Canada in the expectation that he would prove a thorn in Mr. Lincoln's side. The President's proposal to the leading politicians who applied to him to rescind the sentence, that as a condition of this they should make certain declarations of the duty to support the government in a vigorous prosecution of the war, was a most telling bit of policy on his part, and took the sting entirely out of the accusations of tyranny and oppression.
It must be admitted, however, that the case was one in which the administration ought to have left Burnside wholly untrammelled in carrying out the proclamation of September 25, 1862, or should have formulated a rule for its military officers, so that they would have acted only in accordance with the wishes of the government, and in cases where the full responsibility would be assumed at Washington. When Burnside arrested Mr. Vallandigham, the Secretary of War telegraphed from Washington his approval, saying, "In your determination to support the authority of the government and suppress treason in your department, you may count on the firm support of the President." [Footnote: Official Records, vol. xxiii. pt. ii. p. 316.] Yet when a little later Burnside suppressed the "Chicago Times" for similar utterances, the President, on the request of Senator Trumbull, backed by prominent citizens of Chicago, directed Burnside to revoke his action. [Footnote: Id., pp. 385, 386.] This the latter did by General Order No. 91, issued on the 4th of June. He read to me on June 7th a letter from Mr. Stanton, which practically revoked the whole of his Order No. 38 by directing him not to arrest civilians or suppress newspapers without conferring first with the War Department. This would have been very well if it had been done at the beginning; but to have it come after political pressure from the outside, and in so marked contradiction to the approval first expressed, shows that there was no well-considered policy. It put Burnside himself in an intolerable position, and, of course, made him decline further responsibility for such affairs in his department. [Footnote: I do not find in the Official Records the letter of Mr. Stanton above referred to; but I speak of it from a written memorandum I made at the time.]
The whole question as to the right and the policy of military arrests and orders in such a time bristles with difficulties. Had I been consulted before Burnside took action, I should have advised him to collect carefully the facts and report them to Washington, asking for specific instructions. The subject called for directions which would be applicable in all the military departments which included States out of the theatre of active warlike operations; and such general directions should be given by the government. But Burnside was apt to act impulsively, and his impulse was to follow the bent of his ardent patriotism. He was stirred to burning wrath by what seemed to him an intent to give aid and comfort to the rebellion, and meant to punish such conduct without stopping to ask what complications might come of it.
I had found it desirable to form a judgment of my own with reference to the extent or limitation of military authority in the actual circumstances, and I quote the form in which I then cast it, so that I may not seem to be giving opinions formed after my own military duties were ended. I concluded, "First: That martial law operates either by reason of its proclamation by competent authority, or ex necessitate rei in the immediate theatre of military operations. Second; That when the struggle is in the nature of a revolution, and so long as the attempted revolution is in active progress, no definite limits can be given to the 'theatre of operations,' but the administration must be regarded as possessing a limited discretionary power in the use of martial law." As to the practical application of this power, "the presumptions are always in favor of the established civil law of the land, whenever and wherever it has a reasonable chance of unobstructed operation. In a State or portion of the country not the theatre of actual fighting, and where the civil courts are actually organized and working, there must be some strong reason for sending criminals or State prisoners before a military tribunal; such as that the government had reason to believe that a conspiracy was so powerful as to make an actual present danger of its overthrowing the loyal governments in some of the States before the civil courts could act in the ordinary process of business. In such a case, the arrest and admission to bail of the conspirators might be only the signal for their adherents to seize the reins of civil power, overthrow the courts, and consummate a revolution. The quick and summary action of military power would then be the only thing which could avert the danger. The justification of the use of a military tribunal depends on the existence of 'probable cause' for believing the public danger to be great."
I see no reason to change the form of stating the principle I then adopted. The limitations given it seem sufficient to secure proper caution in applying it, and will show that I thought then, as I do now, that the administration ought to have laid down rules by which the commandants of military departments could be guided, and which would have saved us from the weakness of acting with seeming vigor on one day, only to retreat from our position the next.
In Vallandigham's case the common argument was used by his friends that he was not exceeding a lawful liberty of speech in political opposition to the administration. When, however, a civil war is in progress, it is simply a question of fact whether words used are intended to give aid and comfort to the enemy and are evidence of conspiracy with the public enemy. If so, it is too clear for argument that the overt acts of the enemy are brought home to all who combine and confederate with them, and all are involved in the same responsibility. This question of fact and intent was officially settled by the findings of the military court. But there was another connection of the speech with overt acts, which the public mind took firm hold of. Among the most incendiary of Vallandigham's appeals had been those which urged the people to resist the provost-marshals in the several districts. It is nonsense to say that resisting the draft or the arrest of deserters only meant voting for an opposition party at the elections. There had been armed and organized resistance to arrest of deserters in Noble County just before his speech, and soon after it there was a still more formidable armed organization with warlike action against the enrolling officers in Holmes County, in the same region in which the speech was made. This last took the form of an armed camp, and the insurgents did not disperse till a military force was sent against them and attacked them in fortified lines, where they used both cannon and musketry. It did not seem plausible to the common sense of the people that we could properly charge with volleying musketry upon the barricades of the less intelligent dupes, whilst the leader who had incited and counselled the resistance was to be held to be acting within the limits of proper liberty of speech. Law and common sense are entirely in harmony in regarding the conspiracy as a unit, the speech at Mount Vernon and the armed collision on the Holmes County hill being parts of one series of acts in which the instigator was responsible for the natural consequences of the forces he set in motion.
To complete the judicial history of the Vallandigham case, it may be said that he applied to the Supreme Court of the United States a few months afterward for a writ to revise and examine the proceedings of the military commission and to determine their legality. The court dismissed his application on the ground that the writ applied for was not a legal means of bringing the proceedings of the military court under review. The charges and specifications and the sentence were all set forth in the application, so that the court was made officially aware of the full character of the case. This was naturally accepted at the time as practically sustaining the action of the President and General Burnside. When, however, the war was over, there was taken up to the Supreme Court the case of Milligan from Indiana, who had been condemned to death for treasonable conduct in aid of the rebellion, done as a member of the Knights of the Golden Circle, an organization charged with overt acts in attempting to liberate by force the Confederate prisoners of war in the military prisons, and otherwise to assist the rebellion. The current public sentiment in regard to executive power had unquestionably changed with the return to peace, and Lincoln having been assassinated and Johnson being in the presidential chair, the tide was running strongly in favor of congressional rather than executive initiative in public affairs. It cannot be denied that the court responded more or less fully to the popular drift, then as in other important historical junctures. In the opinion as delivered by Judge Davis, it went all lengths in holding that the military commission could not act upon charges against a person not in the military service, and who was a citizen of the State where tried, when in such State the civil courts were not actually suspended by the operations of war. Chief Justice Chase and three of the justices thought this was going too far, and whilst concurring in discharging Milligan, held that Congress could authorize military commissions to try civilians in time of actual war, and that such military tribunals might have concurrent jurisdiction with the civil courts. [Footnote: Ex parte Vallandigham, Wallace's Reports, i. 243. Ex parte Milligan, Id., iv. 2, etc.]
We must not forget that whilst the judicial action determines the rights of the parties in a suit, the executive has always asserted his position as an independent co-ordinate branch of the government, authorized by the Constitution to determine for himself, as executive, his duties, and to interpret his powers, subject only to the Constitution as he understands it. Jefferson, Jackson, and Lincoln in turn found themselves in exigencies where they held it to be their duty to decide for themselves on their high political responsibility in matters of constitutional power and duty. Lincoln suspended the privilege of habeas corpus by his own proclamation, and adhered to his view, although Judge Taney in the Circuit Court for Maryland denied his power to do so. When Congress passed a regulating act on the subject which seemed to him sufficient, he signed the statute because he was quite willing to limit his action by the provisions embodied in it, and not because he thought the act necessary to confer the power.