to Cincinnati, where he was incarcerated in a military prison. May 6 he was brought before a military commission for trial. He denied the jurisdiction of the commission and refused to plead, but the trial went on. It lasted two days. There were two witnesses for the prosecution, the captains, and one for the defence, S. S. Cox, one of the speakers at the Mount Vernon meeting. There were no arguments, but Vallandigham made a protest. His attorney made application to the judge of the United States Circuit Court for a writ of habeas corpus, which was refused. May 16 the Commission found him guilty of "publicly expressing in violation of General Orders No. 38 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 Commission sentenced him to close confinement during the continuance of the war. General Burnside approved the sentence, and designated Fort Warren as the prison. The President commuted it to banishment, and directed that he be sent beyond our military lines to the Southern Confederacy.

From the beginning to the end of these proceedings law and justice were set at naught. The offence for which Vallandigham was tried was the violation of an order of a majorgeneral. The only possible authority for this order was the proclamation of the President of September 24, 1862, itself of doubtful constitutionality. This proclamation was superseded by the Act of Congress of March 3, 1863, inasmuch as a later and joint act of Congress and the President in undoubted accordance with the Constitution 2 must abrogate an earlier decree of the President alone.

The right of General Burnside even to make the arrest may be questioned. The majority of the United States Supreme Court in the Milligan case maintained that the suspension of

1 See p. 170.

2 Opinion of Chief Justice Chase in the Milligan case, 4 Wallace, 133,

the writ of habeas corpus did not authorize the arrest of any one. Conceding, however, this right, as it had hitherto been freely and recklessly exercised, the procedure should have been subject to the Acts of Congress of March 3, 1863, and July 17, 1862. The Secretary of War should have reported the arrest of Vallandigham to the United States judge of that jurisdiction, and if the grand jury found no indictment against him for giving "aid and comfort to the rebellion" or for any other offence, it became the duty of the judge to discharge the prisoner. The argument that southern Ohio was the theatre of war and therefore under martial law because Cincinnati and other parts of the State had been threatened in the autumn of 1862, cannot be maintained. The only safe rule is as old as the Parliament of Edward III.: "When the King's courts are open, it is a time of peace in judgment of law." 2 The United States courts were regularly open in the Southern District of Ohio. But, it is urged, a jury would not convict the prisoner. As the President said in illustration of this and in defence of his action: "A jury too frequently has at least one member more ready to hang the panel than to hang the traitor."3 To dispense with "the sworn twelve" because they will not find a person guilty, would obviously be subversive of personal liberty. The government of England during her war with revolutionary France tried men regularly for sedition and for treason, and while most of them were acquitted amid the shouts and cheers of the London mob the ministry never made a proposition to declare the country under martial law and try the accused by a military tribunal. Happily for us we have a Supreme Court which reviews proceedings and has laid down principles too clear for dispute, that should have guided the President, his

1 This case was decided December, 1866. The opinion of the court was delivered by Justice Davis. On this question the court divided 5 to 4. See Garfield's argument, Works, vol. i. p. 143.

2 Cited in the opinion of the court in the Milligan case, 4 Wallace, 128. 8 Letter to Erastus Corning and others, June 12, Complete Works, vol. ii. p. 347.

Secretaries, and his generals during the civil conflict. The judges were unanimous in declaring that the military commission which tried Milligan was illegal. By a parity of reasoning it follows unquestionably that the military commission which tried and sentenced Vallandigham had not a vestige of legal standing. The commutation of the President was likewise vitiated in law.

3

The connection of Lincoln with this case is of interest. "In my own discretion," he wrote, "I do not know whether I would have ordered the arrest of Mr. Vallandigham. . . . It gave me pain when I learned that he had been arrested (that is, I was pained that there should have seemed to be a necessity for arresting him)."1 But when the arrest was reported by Burnside, he sent a quasi-approval of it through a despatch of the Secretary of War;2 and later wrote: "All the cabinet regretted the necessity of arresting, for instance, Vallandigham, some perhaps doubting there was a real necessity for it; but being done, all were for seeing you through with it." There can be no question that from the legal point of view the President should have rescinded the sentence and released Vallandigham. He chose, however, to assume the responsibility of the arrest, and in his letter to the Albany and Ohio committees he made the strongest argument in its support of which the case admitted. To Erastus Corning of the Albany committee he said: "I was slow to adopt the strong measures which by degrees I have been forced to regard as being within the exceptions of the Constitution and as indispensable to the public safety. . . . I think the time not unlikely to come when I shall be blamed for having made too few arrests rather than too many. . . . Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert? This is none the less injurious when effected by

1 Letter to Erastus Corning and others, Complete Works, vol. ii. p. 351. 2 O. R., vol. xxiii. part ii. p. 316.

To Burnside, Lincoln, Complete Works, vol. ii. p. 342.

getting a father, or brother, or friend into a public meeting and then working upon his feelings till he is persuaded to write the soldier boy that he is fighting in a bad cause for a wicked administration and contemptible government, too weak to arrest and punish him if he shall desert." 1

While the Republicans of Ohio, Indiana, and Illinois, meeting one extreme opinion with another, generally approved of the arrest, trial, and sentence of Vallandigham, many of them, indeed, believing that the sentence was not severe enough and that he deserved hanging, still a large portion of the Republican press of the East condemned his arrest and the tribunal before which he was arraigned. Yet when the President commuted the sentence to banishment to the Southern Confederacy, which was regarded by the people as a huge joke, the proceeding found a greater degree of favor; and when he wrote the two letters in defence of it,2 he carried pretty nearly his whole party with him. While he was adroit and sincere in his reasoning, and went as far towards proving a bad case as the nature of things will permit, he did not take the view of the broad statesman we may note in his papers on compensation to the border States and on the emancipation of the slaves. He employed rather the arguments of the clever attorney and politician eager to seize the weak points of his adversary and bring out in shining contrast the strong features of his own case. We may wish, indeed, that the occasion which prompted these letters had not arisen, yet their tone demonstrated that the great principles of liberty would suffer no permanent harm while Abraham Lincoln was in the presidential chair. The mischief of the procedure lay in the precedent, even as his intimate friend and appointee, Justice David Davis, expressed it in the opinion of the court in the Milligan case: "Wicked men ambitious of power," he said, "with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if

1 Lincoln, Complete Works, vol. ii. p. 347 et seq.

2 The letter to the Ohio committee is printed, ibid., p. 360.

this right is conceded [that of a commander in a time of war to declare martial law within the lines of his military district and subject citizens as well as soldiers to the rule of his will] and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate." 1

The arrest and punishment of Vallandigham were not only contrary to the Constitution and statute, but were likewise bad policy. The Democratic press again became bitter in their criticism of the administration. Many public meetings were held condemning the "outrage." Most of these were marked by, propriety, but the one held in New York City, where blatant demagogues roused the feelings of the basest element, was, in view of what occurred later, an admonition of the care that should be taken by the constituted authorities to observe strictly the letter of the law.

Had it not been for his arrest, Vallandigham would have been obliged to make a contest for the Democratic nomination for governor; now it came to him spontaneously and with almost the unanimous voice of an earnest and enthusiastic convention.2 After remaining awhile in the Southern States, he went by the way of Bermuda to Canada, whence he spoke as a martyr to his fellow-Democrats with a voice of greater power than if he had been able to declaim from the stump in every county of Ohio. It was a serious thing that such a man should become the candidate of a still powerful party in one of the most important States; indeed the hearty response to his nomination made it seem at first more than possible that he might be elected. True, he met with defeat by an overwhelming majority; but it was the victories of Meade and Grant that accomplished his overthrow, and they would have been potent in taking the sting from his words had he been roaming at will over his own State.3

1 4 Wallace, 125.

2 The convention assembled at Columbus June 11.

3 My authorities for this account other than those mentioned are: Life of C. L. Vallandigham by his brother; Trial of C. L. Vallandigham by a Military Commission, Cincinnati (1863); J. D. Cox, Reminiscences, MS;