Clement L. Vallandigham Court-Martial: 1863

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Clement L. Vallandigham Court-Martial:

Defendant: Clement L. Vallandigham
Crime Charged: Publicly opposing the federal government's prosecution of the war while supporting the enemies of the Union
Chief Defense Lawyers Edward A. Ferguson, George H. Pendleton, George E. Pugh
Chief Prosecutor: James M. Cutts, Judge Advocate
Senior Presiding Officer: Robert B. Potter
Court: J.F. DeCourcy, E. R. Goodrich, J. L. Van Buren, J. M. Brown, A. H. Fitch, P. M. Lydig
Place: Cincinnati, Ohio
Date of Trial: May 6-7, 1863
Verdict: Guilty of all but one specification
Sentence: Confinement in a military prison for the duration of the war

SIGNIFICANCE: This was the most publicized and controversial of several trials of civilians by Union court-martials. Although Supreme Court Chief Justice Roger B. Taney, in Ex Parte Merryman (1861), had stated that the military did not have the right to deny a private citizen his right to a civil trial, other Union judges chose to back the military trials. This procedure, however, would not be allowed after the Civil War.

The federal government's war against the Confederacy was by no means supported by everyone in the North, and the most outspoken opponents of the war, especially those Democrats in the midwestern states, came to be known as "Copperheads," a direct allusion to the poisonous snake species. The most zealous of the Copperheads was Clement L. Vallandigham, a native Ohioan who had served in the House of Representatives from 1858 to 1863. An ardent antiabolitionist as well as a supporter of states' rights, from the day the Civil War broke out, Vallandigham took a vehement stand against itin Congress, in newspaper articles, and in public gatherings.

Conflicting Orders

Containing such opposition was a major concern of Abraham Lincoln's administration. Particularly as the war dragged on, month after month, and the Union forces experienced defeat after defeat, the fiery words of Vallandigham came to seem ever more dangerous to those Union leaders charged with pursuing the war. One such was Major General Ambrose E. Burnside, who after his terrible defeat at Fredericksburg, Virginia, in December 1862, was assigned to be Commander of the Department of the Ohio. Infuriated by the antiwar sentiments expressed by Vallandigham and others like him, on April 13, 1863, entirely on his own, Burnside issued "General Orders, No. 38," which stated that the "habit of declaring sympathy for the enemy" would not be tolerated, and that those "committing such offenses" would be arrested and subject to military procedures, not civil courts. This simply served to incite Vallandigham to speak out still more strongly, and on May 1, while addressing a rally in Mount Vernon, Ohio, he deliberately taunted Burnside and said that his right to criticize was based on "'General Orders No. 1'the Constitution of the United States, signed by General George Washington."

When Burnside was informed of Vallandigham's provocative speech, he sent a company of soldiers to arrest him at his home in Dayton, Ohio. Brought by train to Cincinnati in the early hours of May 5, Vallandigham was at first detained in an army barracks, but later in the morning was moved to a suite in the finest hotel in Cincinnati. Controversy over the merits of Burnside's arresting Vallandigham quickly spread around Ohioa mob of Vallandigham supporters set fire to a newspaper that supported the warbut Burnside felt there was no turning back. Still without any authorization from his superiors in Washington, and realizing full well that delay might allow his decision to be countermanded from above, he chose a panel of eight officers from his staff and convened a court-martial for the next day.

The Court Martial

Vallandigham was led by a squad of soldiers into a room in the Newport barracks to face the panelnone of whom, as it happened, was a citizen of Ohio. Vallandigham could not have known that, but at his first opportunity to speak he protested that such a military tribunal had no authority to be trying him, a civilian. The presiding officer ignored this, and the judge advocate read the charges: "Publicly expressing, in violation of 'General Orders, No. 38' sympathies for those in arms against the Government of the United States, declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its effort to suppress the unlawful rebellion." Asked to enter a plea, Vallandighamwho was himself a lawyerrepeated that he did not recognize the authority of this court. For that reason, too, he declined to have his lawyers at his side during the trial.

The only witnesses called against Vallandigham were two army officers who had been sent by Burnside in civilian clothes to attend the rally where he had spoken so defiantly. Vallandigham acted as his own counsel in crossexamining them, but they both had made notes and there was little that Vallandigham wanted to deny except minor details. Thus he corrected the witness who testified that Vallandigham had said Lincoln's administration had "insolently rejected" an appeal by France to mediate a settlement of the war: "The word used was 'instantly,' not 'insolently.'"

On the second day, Vallandigham called his only witness, Ohio congressman Samuel S. Cox; although a Democrat like Vallandigham, he supported the federal decision to go to war and was regarded as a moderate. Cox, who had also been present at the rally, testified that Vallandigham had not attacked Burnside personally; that he had not specifically attacked "General Orders, No. 38"; that he had not advocated resisting any laws; and that all Vallandigham wanted was peace and reunion. Vallandigham's examination of Cox allowed him to emphasize several of his other favorite arguments:

Vallandigham: Do you remember his comments on the change of the policy in the war?

Cox: He did refer to the change in the policy of the war, and devoted some time to showing that it was now carried on for the abolition of slavery; that it has been perverted from a war for the preservation of the Union to one for the abolition of slavery.

Vallandigham: Did he counsel any other mode in that speech of resisting usurpation of arbitrary power, except by free discussion and the ballot box?

Cox: He did not.

The trial concluded with Vallandigham's own summation, in which he continued to challenge the right of the military court to be trying him, continued to assert the right of all citizens to criticize, and continued to deny that he had ever advocated disobedience to the laws of the land.

The room was then cleared so that the panel could deliberate, but since the "jury" was composed of officers handpicked by General Burnside, there was little doubt about their verdict. After three hours, Vallandigham was called back in and informed of the verdict. He was found guilty of the charge and all its specifications except one. The sentence was that he be "placed in close confinement in some fortress of the United States, to be designated by the commanding officer of the Department, there to be kept during the continuance of the war."

An Anti-Climactic End

Vallandigham's lawyers naturally appealed to a federal court on the issue of the right of a military court to try a civilian, but the presiding judge upheld the authority of the court-martial. Burnside had already announced that Vallandigham was to be held at Fort Warren in Boston Harbor, but now President Lincoln faced a dilemma. He had come to detest Vallandigham, but he also was reluctant to restrict freedom of speech; furthermore, he and others in authority in Washington felt that Burnside had overstepped his authority in issuing the "General Orders, No. 38" and then in conducting the court-martial. At a cabinet meeting on May 19, Lincoln was easily persuaded by some members that imprisoning Vallandigham would only make him a martyr, and when it was proposed instead to turn him over to the Confederacy, Lincoln readily agreed. Orders were given, and on May 25, Vallandigham was handed over to a Confederate officer near Shelbyville, Tennessee. Vallandigham soon made his way to Bermuda, and then moved on to Canada; by late August, he settled in Windsor, Ontario, across from Detroit, and was already the Democratic Party's candidate for the governor of Ohio. He lost that election, and in February 1864, he also lost his appeal to the U.S. Supreme Court. On June 14, 1864, however, Vallandigham made his way in disguise back to Ohio, and although there was some call for his re-arrest, Lincoln chose to ignore him. After the war, Vallandigham supported President Andrew Johnson's effort at moderate reconstruction policies. Failing to revive his political career, he returned to the practice of law, and in 1871, intending to demonstrate how a man had accidentally shot himself, he used a pistol he thought was unloaded and killed himself.

John S. Bowman

Suggestions for Further Reading

Klement, Frank. L. The Limits ofDissent: Clement L. Vallandigham and the Civil War. Lexington, Ky.:University of Kentucky Press, 1970.

"Proceedings of a Military Commission Convened in Cincinnati, May 6, 1863." Roll 273, National Archives Microfilm Publication M345, Union Provost Marshal's File, One Name Papers RE: Citizens.

Vallandigham, Clement L. Record of Hon. C. L. Vallandigham on Abolition, the Union and the Civil W17ar. Columbus, Ohio: J. Walters & Co., 1863.

Vallandigham, James. A Life of Clement L. Vallandigham. Baltimore: Turnbull Brothers, 1872.

Vallandigham, Clement L.

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Vallandigham, Clement L. (1820–1871),Demo cratic congressman, leading critic of the Lincoln administration during the Civil War. A lawyer and editor active in Democratic party politics from the 1840s, Vallandigham entered Congress in 1858. During the Civil War, he stridently opposed slave emancipation, the growth of central government power, and a harsh war policy against the South, demanding instead a negotiated peace to save the Constitution from Republican depredations. His opponents claimed that he was so militantly antiwar that he espoused treason. He came under military surveillance and was arrested by Gen. Ambrose Burnside after a speech in 1863 whose General Order No. 38 forbade any “habit of declaring sympathies for the enemy” in Ohio. He was tried and convicted by a military commission, not a civil court, and sentenced to prison.

President Abraham Lincoln, sensitive to the potential political damage of a civil liberties martyr, ordered him deported to Confederate territory. Vallandigham went on to Canada, from where he ran for governor of Ohio in 1863; he was soundly beaten. In 1864, his continued peace advocacy cost the Democrats dearly. Whatever their commitment to constitutional liberties, Northern voters were hostile to the Democrats' apparent support for the nation's enemies. The issues of free expression and opposition to wartime policies, even the war itself, raised by Vallandigham's experiences were to reappear in America's later wars and have never been comfortably settled to everyone's satisfaction.
[See also Black Hawk War.]


Frank L. Klement , The Limits of Dissent: Clement L. Vallandigham and the Civil War, 1970.
Joel H. Silbey , “A Respectable Minority”: The Democratic Party in the Civil War, 1977.
Mark E. Neely, Jr. , The Fate of Liberty: Abraham Lincoln and Civil Liberties, 1991.

Joel H. Silbey

Clement Laird Vallandigham

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Clement Laird Vallandigham

Clement Laird Vallandigham (1820-1871), American politician, was the foremost Peace Democrat during the Civil War. Though he sought to end the conflict and reunite the Union, he unintentionally aided the war effort by becoming a symbol of treasonous activity.

Clement Vallandigham was born in New Lisbon, Ohio, on July 29, 1820. He attended Jefferson College in Canonsburg, Pa., and then studied and practiced law. In 1845 he was elected as a Democrat to the Ohio Legislature, where he was a proponent of limited government and noninterference with slavery. Elected to the U.S. Congress in 1856, he became noted for his harsh denunciations of the Republican party's antislavery stance. He strongly backed compromise with the South during the secession crisis of 1860-1861.

When the Southern Democrats left the party in 1861, and with the death of Stephen A. Douglas, Vallandigham became a major Democratic spokesman in Congress. Even after the Civil War erupted, he believed that the Union could be peacefully restored if only the Democrats were returned to power, stopped the war, and promised to uphold states' rights. He bitterly attacked Republican attempts to broaden the war's aims. The Republicans violently assailed him as the leader of the Copperheads—that is, "traitors" conspiring toward a Southern victory.

In 1862 the Republican legislature gerrymandered Vallandigham's district and defeated him for reelection. No longer in Congress, he continued publicly opposing the war. In 1863 he was arrested on orders of Gen. Ambrose Burnside and charged with expressing disloyal sentiments. A military commission quickly tried him and sentenced him to prison. President Lincoln, embarrassed but not wishing to undermine the general's authority, banished Vallandigham to the Confederacy. Protesting his innocence, Vallandigham went to Canada.

In 1863 Ohio Democrats nominated Vallandigham for governor in absentia, calling him a martyr to arbitrary authority unleashed by the unconstitutional and revolutionary war. In the ensuing campaign the Republicans used the treason issue and overwhelmingly defeated Vallandigham. He returned to the United States in 1864 and was instrumental in placing a peace plank in the Democratic national platform in 1864.

After the war Vallandigham returned to law. He attended the National Union Convention in 1866, designed to create an intersectional conservative party of Democrats and Republicans to counter Radical Republican policies. In 1868 he ran again for Congress but was defeated. In 1871 he urged the Democrats to take a new tack, forget war issues, and seek new programs to win popular support. On June 17 he died while demonstrating to a jury in Hamilton, Ohio, how an alleged murder victim had shot himself.

Further Reading

A highly sympathetic biography of Vallandigham is by his brother, James L. Vallandigham, A Life of Clement L. Vallandigham (1872). This has been superseded by Frank L. Klement, The Limits of Dissent: Clement L. Vallandigham and the Civil War (1970). An excellent, authoritative sketch of his life is in Kenneth W. Wheeler, ed., For the Union: Ohio Leaders in the Civil War (1968). Frank L. Klement, The Copperheads in the Middle West (1960), places Vallandigham's actions in their political context. □

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