JUNE 12, 1863: LINCOLN DEFENDS THE ARREST OF VALLANDIGHAM
Clement L. Vallandigham, a Democratic congressman from Ohio, distinguished himself as one of Abraham Lincoln’s most vociferous critics. Although claiming a great love for the Union, he condemned nearly all the measures the administration undertook to save it. Vallandigham opposed conscription, constraints on civil liberties, and most of all, emancipation. In a speech in Congress he compared the draft to the seizure of infants under the pharaohs, warning that “like the destroying angel in Egypt,” the government would “enter every house for the first-born sons of the people.” After being defeated for reelection Vallandigham returned to Ohio, where he declared on May 1, 1863, that “a wicked, cruel, and unnecessary” war was being waged “for the freedom of the blacks and the enslavement of the whites.” For Ambrose Burnside, the commander of the Department of the Ohio, this was too much. On May 5 Burnside’s men arrested Vallandigham at his home in Dayton. He was charged with violating Burnside’s recently issued General Orders No. 38, which prohibited “declaring sympathies for the enemy,” and with making statements “for the purpose of weakening the power of the Government in its efforts to suppress an unlawful rebellion.” In short order, Vallandigham was tried by a military commission, convicted, and sentence to imprisonment for the duration of the war.
In the ensuing controversy even Harper’s Weekly, a staunch supporter of the war and Republican policies generally, opposed Burnside’s action, fearing it would make a martyr out of a man better ignored. The editors had little fear that Vallandigham would materially injure the North. The people have “quite sense enough to withstand any amount of seditious nonsense,” the journal proclaimed. Nonetheless, his arrest alarmed advocates of free speech and civil liberty, including some Republicans. Just as the infamous “gag rule” barring anti-slavery petitions from the US House of Representatives had generated sympathy for abolitionists among northerners otherwise unsympathetic to their radical cause, Vallandigham’s arrest breathed new life into charges that Lincoln was a tyrant more concerned with destroying his political enemies than with defeating the Confederacy.
Although Lincoln privately bemoaned Burnside’s political blunder, he did not free Vallandigham, choosing instead to order his expulsion into Confederate-held territory. In a letter written in response to a public meeting protesting Vallandigham’s arrest, Lincoln defended the suspension of habeas corpus and the use of military trials as the legitimate exercise of powers given to the president in a time of war by the Constitution. In addition to his constitutional arguments, the president stressed the nonpartisan purpose behind Vallandigham’s prosecution. “He was not arrested because he was damaging the political prospects of the Administration,” the president wrote, “but because he was damaging the Army, upon the existence and vigor of which the life of the Nation depends.” Vallandigham’s protests against the war, which seemed to encourage desertion, drew his special scorn. Lincoln reminded his readers of the death penalty for desertion, a punishment that as commander in chief the president was responsible for executing, and then asked: “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?”
No doubt Lincoln longed to do more than touch Vallandigham’s hair, but more important was defusing the political controversy caused by his arrest. After being nominated as the Democratic candidate for governor of Ohio, Vallandigham made his way to Canada, where he campaigned from exile. He was defeated in October 1863 by more than 100,000 votes after his anti-war message was undercut by the turn in military fortunes in July, when Union forces gained control of the Mississippi River by capturing Vicksburg and turned back Lee’s second invasion of the North with their victory at Gettysburg.
Nevertheless, Vallandigham’s arrest proved a permanent mark on Lincoln’s record. Critics of the president, then and now, cited it as evidence that Lincoln exercised dictatorial powers, used the pretense of military necessity to target his enemies, and ignored constitutional protections of civil liberties that remain intact in wartime. The dilemma, then as now, revolved around how a democratic government defines loyalty and what sorts of actions can be construed as aiding an enemy in wartime. Are protests against a war treasonous? What about criticisms of military incompetence and corrupt contracting practices? In what terms and how strongly can political opponents denounce executive actions without seeming to abet or sympathize with the enemy? Lincoln sanctioned actions during the war that he knew would be unconstitutional in peacetime but believed to be necessary in order to preserve the Constitution itself. Like other democracies, our nation confronts these questions each time we engage in military action.
 Clement L. Vallandigham, Speech in Congress, February 23, 1863, in The Civil War: The Third Year Told by Those Who Lived It, ed. Brooks D. Simpson (New York: Library of America, 2013), 67.
 The Arrest of Vallandigham, Harper’s Weekly, May 30, 1863, in The Civil War: The Third Year Told by Those Who Lived It, ed. Brooks D. Simpson (New York: Library of America, 2013), 226.
 The Arrest of Vallandigham, Harper’s Weekly, May 30, 1863, in The Civil War: The Third Year Told by Those Who Lived It, ed. Brooks D. Simpson (New York: Library of America, 2013), 227.
 Abraham Lincoln to Erastus Corning, June 12, 1863, in The Civil War: The Third Year Told by Those Who Lived It, ed. Brooks D. Simpson (New York: Library of America, 2013), 259–260.
Aaron Sheehan-Dean is the Eberly Family Professor of Civil War History at West Virginia University.