An incident in the history of the treasonable organizations believed to exist in Indiana emphasizes the change of mental attitude of Judge Davis between 1863 and 1866. During the progress of the Vallandigham case, General Burnside conceived a distrust of the wisdom of the course pursued by Brigadier-General Carrington, who commanded at Indianapolis, and sent Brigadier-General Hascall there to command that district. Carrington had been the right hand of Governor Morton in ferreting out the secrets of the Golden Circle, and applying Order No, 38 to them, but Burnside's lack of confidence in the cool-headed caution and judgment of his subordinate led him to make the change. Hascall was a brave and reliable Indiana officer, who had seen much active field service, and with whom I was associated in the Twenty-third Corps during the Atlanta campaign. He was ardently loyal, but an unexcitable, matter-of-fact sort of person. He did not suit Governor Morton, who applied to the Secretary of War to have him removed from command, declaring that immediate action was important. Judge Davis, who was in Indianapolis, was induced to co-operate with the governor in the matter, and telegraphed to Mr. Stanton that Hascall's removal was demanded by the honor and interests of the government. [Footnote: Official Records, vol. xxiii. pt. ii. p.369. See also Id., p.194.] Hascall was sent to the field, and after a short interval Carrington was restored to duty at Indianapolis. In the continued investigation and prosecution of the Golden Circle, and finally in the trial of Milligan, General Carrington was, under Governor Morton, the most active instrument; and it was, of course, to keep him at work on that line that the changes in command were secured. Yet it was the fruit of this very work of Carrington that was so strongly and sweepingly declared to be illegal by the Supreme Court, Judge Davis himself delivering the opinion and going beyond the chief-justice and others in denying all power and authority to military courts in such cases. Had Mr. Lincoln lived, he would no doubt have avoided any question before the Supreme Court in regard to his authority, by pardoning Milligan as he granted amnesty to so many who had been active in the rebellion. But Mr. Johnson was so much hampered by his quarrel with Congress over reconstruction that he was disposed to avoid interference with criminal cases where his action could subject him to the charge of sympathy with the accused. He carefully abstained from meddling with Jefferson Davis as he did with Milligan, and left the responsibility with the courts.
The final development of the investigation of the Society of the Golden Circle took place after I had again obtained a field command, and I was glad to have no occasion to form a personal judgment about it. The value of evidence collected by means of detectives depends so greatly on the character of the men employed and the instructions under which they act, that one may well suspend judgment unless he has more than ordinarily full knowledge on these points. The findings of the military commission must stand as a prima facie historical determination of the facts it reported, and the burden of proof is fairly upon those who assert that the conclusions were not sustained by trustworthy evidence.
I have mentioned the open resistance to the draft and to the arrest of deserters in Noble and in Holmes counties. The first of these was scarcely more than a petty riotous demonstration, which melted away before the officers as soon as they were able to show that they were backed by real power. The second looked for a time more formidable, and assumed a formal military organization. Governor Tod issued a proclamation warning the offenders of the grave consequences of their acts, and exhorting them for their own sake and the sake of their families to disperse and obey the laws. I directed General Mason at Columbus to be sure, if military force had to be used, that enough was concentrated to make stubborn resistance hopeless. The insurgents maintained a bold face till the troops were close upon them; but when they saw a strong line of infantry charging up toward the stone fences on the hillside where they had made their camp, and heard the whistling of bullets from the skirmishers, their courage gave way and they fled, every man for himself. Only two or three were seriously wounded, and comparatively few arrests were made. [Footnote: Official Records, vol. xxiii. pt. i. pp.395-397.] Submission to law was all that was demanded, and when this was fully established, the prisoners were soon released without further punishment. The fear of further prosecutions operated to preserve the peace, and the men who had been allowed to go at large were a guaranty, in effect, for the good behavior of the community.
Before dropping the subject, I may properly add that the arrest of Mr. Vallandigham very naturally raised the question how far we were willing to go in bringing disloyal men before the military courts. Prominent citizens, and especially men in official position, often found themselves urged to ask for the arrest of the more outspoken followers of Vallandigham in every country neighborhood. In answer to inquiries which had come through the Hon. Martin Welker, [Footnote: Afterward for many years Judge of the U. S. District Court for northern Ohio.] member of Congress for the Wayne County district, I wrote him a letter which shows the efforts we made to be prudent and to avoid unnecessary collisions. Judge Welker had served as Judge Advocate on my staff in the three months' service in the spring of 1861, and my intimacy with him made me speak as to our policy without reserve.
"We are hopeful," I wrote, "now that the United States Circuit Court has refused to release Mr. Vallandigham on habeas corpus, that his followers will take warning and that their course will be so modified that there may be no occasion to make many more arrests.
"I am persuaded that our policy should be to repress disloyalty and sedition at home rather by punishment of prominent examples than by a general arrest of all who may make themselves obnoxious to General Order No. 38, as the latter course will involve a more frequent application of military authority than we choose to resort to, unless circumstances should make it imperatively necessary... I am full of hope that the seditious designs of bad men will fail by reason of the returning sense of those who have been their dupes, and that the able and patriotic opinion of Judge Leavitt in the habeas corpus case will cause great numbers to take positive ground in favor of the government, who have hitherto been more or less under the influence of our northern traitors. If such shall be the result we can afford to overlook bygones, and I am inclined to await the development of public sentiment before following up Vallandigham's arrest by many others."
This letter was written before the Secretary of War made any limitation of Burnside's authority in enforcing his famous order, and shows that in the District of Ohio, at least, there was no desire to set up a military despotism, or to go further in applying military methods to conduct in aid of the rebellion than we might be forced to go.
Burnside's action in suppressing disloyal newspapers was not peculiar to himself. General Wright, his predecessor, had done the same, and other military commandants, both before and after and in other parts of the country, had felt obliged to take the same course. These facts only make more clear the desirability of a well-considered system of action determined by the government at Washington, and applicable to all such cases.