Military Reminiscences of the Civil War Volume I Part 19

To form a new department for General Schenck, West Virginia was detached from the Department of the Ohio and annexed to Maryland.

[Footnote: Official Records, vol. xxv. pt. ii. p. 145.] This was a mistake from a military point of view, for not only must the posts near the mountains be supplied and reinforced from the Ohio as their base, toward which would also be the line of retreat if retreat were necessary, but the frequent advances of the Confederate forces, through the Shenandoah valley to the Potomac, always separated the West from any connection with Baltimore, and made it impossible for an officer stationed there (as General Schenck was) to direct affairs in the western district at the very time of greatest necessity.

Another important fact was overlooked. The river counties of Ohio formed part of the district, and the depots on the river were supplied from Cincinnati. Not only was Gallipolis thus put in another department from the posts directly dependent on that depot as a base of supplies and the princ.i.p.al station for hospitals, but the new boundary line left me, personally, and my headquarters in the Department of the Ohio. I at once called the attention of the War Department to these results, sending my communication in the first instance through General Wright. He was in the same boat with myself, for his rank had also been reduced on the 4th of March, but he thought the intention must have been to transfer me with the district to the Eastern Department. On this I wrote to Washington direct, asking for definite orders. I also wrote to General Schenck, telling him of General Wright's supposition that I was transferred with the district, and inquiring if he had any definite decision of the question. [Footnote: _Id_., pp. 159, 160.]

About the 3d of April I was directed to report in person to General Schenck at Baltimore, [Footnote: _Id_., p. 175.] and reached that city on the 4th. My relations with General Schenck had been, personally, cordial, and our friendship continued till his death, many years after the war. Whatever plans he may have had were set aside by orders from Washington, which met me at his headquarters, ordering me to report at Columbus, Ohio, to a.s.sist the governor in organizing the troops to be called out under the new enrolment and conscription law. This was accompanied by the a.s.surance that this duty would be but temporary, and that my desire to be a.s.signed to active field duty would then be favorably considered. It is not improbable that my report on army organization, which has been mentioned, had something to do with this a.s.signment; but I did not ask permission to visit Washington, though within a couple of hours'

ride of the capital, and hastened back to my a.s.signed post. Besides my wish to cut my connection with West Virginia on general military theories of its insignificance as a theatre of war, my stay there would have been intolerable, since General Milroy, in whose judgment I had less confidence than in that of any of my other subordinates, was, by the curious outcome of the winter's promotions, the one of all others who had been put over my head. I could not then foresee the cost the country would pay for this in the next summer's campaign in the Shenandoah, but every instinct urged me to sever a connection which could bode no good. The reasonableness of my objection to serving as a subordinate where I had been in command was recognized, and the arrangement actually made was as acceptable as anything except a division in an active army.

It greatly added to my contentment to learn that General Burnside had been ordered to the Department of the Ohio, and would be my immediate superior. I hastened back to Marietta, closed up the business pending there, and went to Columbus on the 9th of April.

The arrangement between Governor Tod and General Burnside proved to be the formation of the Military District of Ohio, including the whole State. I was placed in command of this district, reporting directly to the general, who himself conferred with the governor. My own relations to my superiors were thus made strictly military, which was a much pleasanter thing for me than direct connection with the civil authorities would be; for this involved a danger of cross-purposes and conflicting orders. Brigadier-General John S.

Mason, an excellent officer, was ordered to report to me as my immediate subordinate in command of the camps and the post at Columbus, and before the end of the month Burnside directed me to fix my own headquarters at Cincinnati, where I could be in constant communication with himself. All this was done with the most cordial understanding between Burnside and the governor. Indeed, nothing could be more perfect than the genial and reasonable tone of Governor Tod's intercourse with the military officers stationed in Ohio.

My duties under the Enrolment Act turned out to be very slight. The Act (pa.s.sed March 3, 1863) made, in general, each congressional district an enrolment district under charge of a provost-marshal with the rank of captain. A deputy provost-marshal supervised the enrolment and draft for the State, and the whole was under the control of the provost-marshal-general at Washington, Colonel James B. Fry. The law provided for cla.s.sification of all citizens capable of military duty between the ages of twenty and forty-five, so as to call out first the unmarried men and those not having families dependent on them. The exemptions on account of physical defects were submitted to a board of three, of which the local provost-marshal was chairman, and one was a medical man. Subst.i.tutes might be accepted in the place of drafted men, or a payment of three hundred dollars would be taken in place of personal service, that sum being thought sufficient to secure a voluntary recruit by the government. The princ.i.p.al effect of this provision was to establish a current market price for subst.i.tutes.

The general provisions of the law for the drafting were wise and well matured, and the rules for the subordinate details were well digested and admirably administered by Colonel Fry and his bureau.

It was a delicate and difficult task, but it was carried out with such patience, honesty, and thoroughness that nothing better could be done than copy it, if a future necessity for like work should arise. There was no good ground for complaint, and in those cases where, as in New York, hostile political leaders raised the cry of unfairness and provoked collision between the mob and the National authorities, the victims were proved to be the dupes of ignorance and malice. The administration of the law was thoroughly vindicated, and if there were to be a draft at all, it could not be more fairly and justly enforced.

There was room for difference of opinion as to some of the provisions of the law regarding exemption and subst.i.tution, but the most serious question was raised by the section which applied to old regiments and which had nothing to do with the enrolment and draft.

This section directed that when regiments had become reduced in numbers by any cause, the officers of the regiment should be proportionately diminished. As new regiments were still received and credited upon the State's liability under the draft, it of course resulted that the old regiments continued to decay. A public sentiment had been created which looked upon the draft as a disgrace, and the most extraordinary efforts were made to escape it.

Extra bounties for volunteering were paid by counties and towns, and the combination of influences was so powerful that it was successful in most localities, and very few men were actually put in the ranks by the draft.

The offer of extra bounties to induce volunteering brought into existence "bounty-jumping," a new crime a.n.a.logous to that of "repeating" at elections. A man would enlist and receive the bounty, frequently several hundred dollars, but varying somewhat in different places and periods. He would take an early opportunity to desert, as he had intended to do from the first. Changing his name, he would go to some new locality and enlist again, repeating the fraud as often as he could escape detection. The urgency to get recruits and forward them at once to the field, and the wide country which was open to recruiting, made the risk of punishment very small. Occasionally one was caught, and he would of course be liable to punishment as a deserter. The final report of the provost-marshal-general mentions the case of a criminal in the Albany penitentiary, New York, who confessed that he had "jumped the bounty" thirty-two times. [Footnote: Provost-Marshal-General's Report, p. 153.]

Another evil incidental to the excessive stimulus of volunteering was a political one, which threatened serious results. It deranged the natural political balance of the country by sending the most patriotic young men to the field, and thus giving an undue power to the disaffected and to the opponents of the administration. This led to the State laws for allowing the soldiers to vote wherever they might be, their votes being certified and sent home. In its very nature this was a makeshift and a very dubious expedient to cure the mischief. It would not have been necessary if we had had at an early day a system of recruiting that would have drawn more evenly from different cla.s.ses into the common service of the country.

The military officers of the department and district had nothing to do with the enrolment and drafting, unless resistance to the provost-marshals should make military support for these officers necessary. We had hoped to have large camps of recruits to be organized and instructed, but the numbers actually drafted in Ohio, in 1863, were insignificant, for reasons already stated. Three or four very small post garrisons were the only forces at my command, and these were reduced to the minimum necessary to guard the prison camps and the depots of recruiting and supply.

General Burnside had not come West with a purpose to content himself with the retiracy of a department out of the theatre of actual war.

His department included eastern Kentucky, and afforded a base for operations in the direction of East Tennessee. Mr. Lincoln had never lost his eagerness and zeal to give a.s.sistance to the loyal mountaineers, and had arranged with Burnside a plan of co-operation with Rosecrans by which the former should move from Lexington, Ky., upon Knoxville, whilst the latter marched from Murfreesboro, Tenn., upon Chattanooga. This was better than the impracticable plan of 1861, which aimed at the occupation of East Tennessee before Chattanooga had been taken, and the task was at last accomplished by the method now used. It was by no means the best or most economical method, which would have been to have but one strong army till Chattanooga were firmly in our hands, and then direct a subordinate column upon the upper Holston valley. It was utterly impossible to keep up a line of supply for an army in East Tennessee by the wagon roads over the mountains. The railroad through Chattanooga was indispensable for this purpose. But Mr. Lincoln had not fully appreciated this, and was discontented that both Buell and Rosecrans had in turn paid little attention, as it seemed, to his desire to make the liberation of East Tennessee the primary and immediate aim of their campaigns. He had therefore determined to show his own faith in Burnside, and his approval of the man, by giving him a small but active army in the field, and to carry out his cherished purpose by having it march directly over the c.u.mberland Mountains, whilst Rosecrans was allowed to carry out the plan on which the commanders of the c.u.mberland army seemed, in the President's opinion, too stubbornly bent.

Burnside's old corps, the Ninth, was taken from the Army of the Potomac and sent to Kentucky, and a new corps, to be called the Twenty-third, was soon authorized, to contain the Tennessee regiments which had been in General Morgan's command, and two divisions made up of new regiments organized in Ohio, Indiana, and Illinois under the last call for volunteers. To these were added several Kentucky regiments of different ages in service. General Parke, so long Burnside's chief of staff, was to command the Ninth Corps, and Major-General George L. Hartsuff was a.s.signed to the Twenty-third. In a former chapter I have spoken of Hartsuff's abilities as a staff officer in West Virginia. [Footnote: Chap, vi., _ante_.] His qualities as a general officer had not been tried. He was wounded at the beginning of the engagement at Antietam, where he commanded a brigade in Hooker's corps. [Footnote: Chap, xv., _ante_.] That was his first service under his appointment as brigadier, and he had necessarily been out of the field since that time. My own expectation was that he would make an excellent reputation as a corps commander, but it was not his fortune to see much continuous field service. His health was seriously affected by his wounds, and after a short trial of active campaigning he was obliged to seek more quiet employment.

The establishment of my headquarters at Cincinnati threw me once more into close personal relations with Burnside, and enabled me to learn his character more intimately. His adjutant-general's office was on East Fourth Street, and most of the routine work was done there. The general had his own quarters on Ninth Street, where he had also an office for himself and his aides-de-camp. My own office and the official headquarters of the district were on Broadway below Fourth, in the house now occupied by the Natural History Society.

There was thus near half a mile between us, though I was but a little way from the adjutant-general of the department, through whose office my regular business with the general went. Burnside, however, loved to discuss department affairs informally, and with the perfect freedom of unrestrained social intercourse. When he gave his confidence he gave it without reserve, and encouraged the fullest and freest criticism of his own plans and purposes. His decisions would then be put in official form by the proper officers of the staff, and would be transmitted, though I was nearly always personally aware of what was to be ordered before the formal papers reached me. He had very little pride of opinion, and was perfectly candid in weighing whatever was contrary to his predilections; yet he was not systematic in his business methods, and was quite apt to decide first and discuss afterward. He never found fault with a subordinate for a.s.suming responsibility or acting without orders, provided he was a.s.sured of his earnest good purpose in doing so. In such cases he would a.s.sume the responsibility for what was done as cheerfully as if he had given the order. In like manner he was careless of forms himself, in doing whatever seemed necessary or proper, and might pa.s.s by intermediate officers to reach immediately the persons who were to act or the things to be done. There was no intentional slight to any one in this: it was only a characteristic carelessness of routine. Martinets would be exasperated by it, and would be pretty sure to quarrel with him. No doubt it was a bad business method, and had its mischiefs and inconveniences. A story used to go the rounds a little later that soldiers belonging to the little army in East Tennessee were sometimes arrested at their homes and sent back as deserters, when they would produce a furlough written by Burnside on a leaf of his pocket memorandum-book, which, as they said, had been given by him after hearing a pitiful story which moved his sympathies. Such inventions were a kind of popular recognition of his well-known neglect of forms, as well as of his kind heart. There was an older story about him, to the effect that, when a lieutenant in the army, he had been made post-quartermaster at some little frontier garrison, and that his accounts and returns got into such confusion that after several pretty sharp reminders the quartermaster-general notified him, as a final terror, that he would send a special officer and subject him and his papers to a severe scrutiny. As the story ran, Burnside, in transparent honesty, wrote a cordial letter of thanks in reply, saying it was just what he desired, as he had been trying hard to make his accounts up, but had to confess he could do nothing with them, but was sure such an expert would straighten them. In my own service under him I often found occasion to supply the formal links in the official chain, so that business would move on according to "regulations;" but any trouble that was made in this way was much more than compensated by the generous trust with which he allowed his name and authority to be used when prompt action would serve the greater ends in view.

My habit was to go to his private quarters on Ninth Street, when the regular business of the day was over, and there get the military news and confer with him on pending or prospective business affecting my own district. His attractive personality made him the centre of a good deal of society, and business would drop into the background till late in the evening, when his guests voluntarily departed. Then, perhaps after midnight, he would take up the arrears of work and dictate letters, orders, and dispatches, turning night into day. It not unfrequently happened that after making my usual official call in the afternoon, I had gone to my quarters and to bed at my usual hour, when I would be roused by an orderly from the general begging that I would come up and consult with him on some matter of neglected business. He was always bright and clear in those late hours, and when he buckled to work, rapidly disposed of it.

He did not indulge much in retrospect, and rarely referred to his misfortunes in the Army of the Potomac. On one or two occasions he discussed his Fredericksburg campaign with me. The delay in sending pontoons from Washington to Falmouth, which gave Lee time to concentrate at Fredericksburg, he reasonably argued, was the fault of the military authorities at Washington; but I could easily see that if his supervision of business had been more rigidly systematic, he would have made sure that he was not to be disappointed in his means of crossing the Rappahannock promptly. As to the battle itself he steadily insisted that the advance of Meade's division proved that if all the left wing had acted with equal vigor and promptness, Marye's heights would have been turned and carried. It is due to him to repeat that in such discussions his judgment of men and their motives was always kind and charitable. I never heard him say anything bitter, even of those whom I knew he distrusted.

At the time I am speaking of, Cincinnati was in a curious political and social condition. The advance through Kentucky of Bragg and Kirby Smith in the preceding year had made it a centre for "rebel sympathizers." The fact that a Confederate army had approached the hills that bordered the river had revived the hopes and the confidence of many who, while wishing success to the Southern cause, had done so in a vague and distant way. Now it seemed nearer to them, and the stimulus to personal activity was greater. There was always, in the city, a considerable and influential body of business men who were of Southern families; and besides this, the trade connections with the South, and the personal alliances by marriage, made a ground of sympathy which had noticeable effects. There were two camps in the community, pretty distinctly defined, as there were in Kentucky. The loyal were ardently and intensely so. The disloyal were bitter and not always restrained by common prudence. A good many Southern women, refugees from the theatre of active war, were very open in their defiance of the government, and in their efforts to aid the Southern armies by being the bearers of intelligence. The "contraband mail" was notoriously a large and active one.

Burnside had been impressed with this condition of things from the day he a.s.sumed command. His predecessor had struggled with it without satisfactory results. It was, doubtless, impossible to do more than diminish and restrain the evil, which was the most annoying of the smaller troubles attending the anomalous half-military and half-civil government of the department. Within three weeks from his arrival in Cincinnati, Burnside was so convinced of the widespread and multiform activity of the disloyal element that he tried to subdue it by the publication of his famous General Order No. 38. The reading of the order gives a fair idea of the hostile influences he found at work, for of every cla.s.s named by him there were numerous examples.

[Footnote: The text of the order is as follows:

"General Orders.

No. 38.

HEADQUARTERS DEPARTMENT OF THE OHIO, CINCINNATI, OHIO, April 13, 1863.

The commanding general publishes, for the information of all concerned, that hereafter all persons found within our lines who commit acts for the benefit of the enemies of our country, will be tried as spies or traitors, and, if convicted, will suffer death.

This order includes the following cla.s.ses of persons: Carriers of secret mails; writers of letters sent by secret mails; secret recruiting officers within the lines; persons who have entered into an agreement to pa.s.s our lines for the purpose of joining the enemy; persons found concealed within our lines, belonging to the service of the enemy; and, in fact, all persons found improperly within our lines who could give private information to the enemy; and all persons within our lines who harbor, protect, conceal, feed, clothe, or in any way aid the enemies of our country. The habit of declaring sympathy for the enemy will not be allowed in this department.

Persons committing such offences will be at once arrested with a view to being tried as above stated, or sent beyond our lines into the lines of their friends. It must be distinctly understood that treason, expressed or implied, will not be tolerated in this department. All officers and soldiers are strictly charged with the execution of this order, By command of Major-General Burnside, LEWIS RICHMOND, a.s.sistant Adjutant General."]

It was no doubt true that the Confederate authorities had constant correspondence with people in the Northern States, and that systematic means were used to pa.s.s information and contraband merchandise through the lines. Quinine among drugs, and percussion caps among ordnance stores were the things they most coveted, and dealers in these carried on their trade under pretence of being spies for each side in turn. But besides these who were merely mercenary, there were men and women who were honestly fanatical in their devotion to the Confederate cause. The women were especially troublesome, for they often seemed to court martyrdom. They practised on our forbearance to the last degree; for they knew our extreme unwillingness to deal harshly with any of their s.e.x.

Personally, I rated the value of spies and informers very low, and my experience had made me much more p.r.o.ne to contempt than to fear of them. But examples had to be made occasionally; a few men were punished, a few women who belonged in the South were sent through the lines, and we reduced to its lowest practical terms an evil and nuisance which we could not wholly cure. The best remedy for these plots and disturbances at the rear always was to keep the enemy busy by a vigorous aggressive at the front. We kept, however, a species of provost court pretty actively at work, and one or two officers were a.s.signed to judge-advocate's duty, who ran these courts under a careful supervision to make sure that they should not fall into indiscretions.

So long as the hand of military power was laid only on private persons who were engaged in overt acts of giving aid and comfort to the rebellion in the ways specified in Order No. 38, there was little criticism. But the time came when General Burnside seemed to be challenged by a public character of no little prominence to enforce his order against him. The Vallandigham case became the sensation of the day, and acquired a singular historical importance.

The noise which was made about it seemed to create a current opinion that Burnside's action was a new departure, and that his Order No.

38 was issued wholly on his own responsibility. This was not so. In the preceding year, and about the time of his Emanc.i.p.ation Proclamation, the President had also proclaimed against treasonable practices in very emphatic terms. He had declared that "all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to rebels against the authority of the United States, shall be subject to martial law and liable to trial and punishment by courts-martial or military commission." [Footnote: Messages and Papers of the Presidents, vol. vi. p. 98. See also Order No. 42 of General Burbridge, commanding District of Kentucky. Official Records, vol. x.x.xix. pt. ii. p. 27.]

Burnside's order was in strict accordance with this authority, and he had no ultimate responsibility for the policy thus proclaimed. He was simply reiterating and carrying out in his department the declared purpose of the administration. Even in the matter of newspaper publications, his predecessor, General Wright, had felt obliged, upon Bragg and Kirby Smith's invasion of Kentucky, to put a stop to treasonable editorials and to the publication of military information likely to benefit the enemy. He issued a circular on September 13, 1862, notifying the publishers of the Cincinnati papers that the repet.i.tion of such offence would be immediately followed by the suppression of the paper and the arrest and confinement of the proprietors and writers. [Footnote: Official Records, vol. xvi. pt. ii. p. 514. See a characteristic letter by Sherman on this subject, _Id_., vol. x.x.xi. pt. i. p. 765: "Now I am again in authority over you, and you must heed my advice. Freedom of speech and freedom of the press, precious relics of former history, must not be construed too largely. You must print nothing that prejudices government or excites envy, hatred, and malice in a community. Persons in office or out of office must not be flattered or abused. Don't publish an account of any skirmish, battle, or movement of an army, unless the name of the writer is given in full and printed. I wish you success; but my first duty is to maintain 'order and harmony.'" (To editors of "Memphis Bulletin.")] It is necessary to keep these facts in mind if we would judge fairly of Burnside's responsibility when it was his fortune to apply the rule to a case attracting great public attention.

CHAPTER XXII

THE VALLANDIGHAM CASE--THE HOLMES COUNTY WAR

Clement L. Vallandigham--His opposition to the war--His theory of reconstruction--His Mount Vernon speech--His arrest--Sent before the military commission--General Potter its president--Counsel for the prisoner--The line of defence--The judgment--Habeas Corpus proceedings--Circuit Court of the United States--Judge Leavitt denies the release--Commutation by the President--Sent beyond the lines--Conduct of Confederate authorities--Vallandigham in Canada--Candidate for Governor--Political results--Martial law--Principles underlying it--Practical application--The intent to aid the public enemy--The intent to defeat the draft--Armed resistance to arrest of deserters, n.o.ble County--To the enrolment in Holmes County--A real insurrection--Connection of these with Vallandigham's speeches--The Supreme Court refuses to interfere--Action in the Milligan case after the war--Judge Davis's personal views--Knights of the Golden Circle--The Holmes County outbreak--Its suppression--Letter to Judge Welker.

Clement L. Vallandigham had been representative in Congress of the Montgomery County district of Ohio, and lived at Dayton. He was a man of intense and saturnine character, belligerent and denunciatory in his political speeches, and extreme in his views. He was the leader in Ohio of the ultra element of opposition to the administration of Mr. Lincoln, and a bitter opponent of the war. He would have prevented the secession of the Southern States by yielding all they demanded, for he agreed with them in thinking that their demands for the recognition of the const.i.tutional inviolability of the slave system were just. After the war began he still advocated peace at any price, and vehemently opposed every effort to subdue the rebellion. To his mind the war was absolutely unconst.i.tutional on the part of the national government, and he denounced it as tyranny and usurpation. His theory seemed to be that if the South were "let alone," a reconstruction of the Union could be satisfactorily effected by squelching the anti-slavery agitation, and that the Western States, at any rate, would find their true interest in uniting with the South, even if the other Northern States should refuse to do so. Beyond all question he answered to the old description of a "Northern man with Southern principles,"

and his violence of temper made it all a matter of personal hatred with him in his opposition to the leaders of the party in power at the North. His denunciations were the most extreme, and his expressions of contempt and ill-will were wholly unbridled. He claimed, of course, that he kept within the limits of a "const.i.tutional opposition," because he did not, in terms, advise his hearers to combine in armed opposition to the government.

About the first of May he addressed a public meeting at Mount Vernon in central Ohio, where, in addition to his diatribes against the Lincoln administration, he denounced Order No. 38, and Burnside as its author. His words were noted down in short-hand by a captain of volunteers who was there on leave of absence from the army, and the report was corroborated by other reputable witnesses. He charged the administration with designing to erect a despotism, with refusing to restore the Union when it might be done, with carrying on the war for the liberation of the blacks and the enslavement of the whites.

He declared that the provost-marshals for the congressional districts were intended to restrict the liberties of the people; that courts-martial had already usurped power to try citizens contrary to law; that he himself would never submit to the orders of a military dictator, and such were Burnside and his subordinates; that if those in authority were allowed to accomplish their purposes, the people would be deprived of their liberties and a monarchy established. Such and like expressions, varied by "trampling under his feet" Order No. 38, etc., made the staple of his incendiary speech.

When the report was made to Burnside and he had satisfied himself of its substantial truth, he promptly accepted the challenge to test the legality of his order, and directed the arrest of Mr.

Vallandigham. It was characteristic of him that he did not consult with his subordinates or with lawyers. He did not even act through my district organization, but sent his own aide-de-camp with a guard to make the arrest at Dayton. My recollection is that I did not know of the purpose till it was accomplished. His reason for direct action, no doubt, was that if there were many links in the chain of routine, there were multiplied chances of failure. He did not want to be baffled in the arrest, or to give the opportunity for raising a mob, which there would be if his purposes were to become known in advance,

The arrest was made in the early morning of the 5th of May, before dawn, and the prisoner was brought to Cincinnati. He was at first taken under guard to the Burnet House, where he breakfasted, and was then put in the military prison connected with the houses used as barracks for the troops in the city. A military commission had been ordered on the 21st of April from Department Headquarters for the trial of the cla.s.ses of offenders named in Order No. 38, and of this commission Brigadier-General R. B. Potter of the Ninth Corps was President. General Potter was a distinguished officer throughout the war. He was a brother of Clarkson N. Potter, the prominent lawyer and Democratic member of Congress later, and both were sons of the Episcopal Bishop Potter of Pennsylvania. The character of the whole court was very high for intelligence and standing. Before this court Mr. Vallandigham was arraigned on the charge of publicly expressing sympathy with those in arms against the government, and uttering disloyal sentiments and opinions with intent to weaken the power of the government in its efforts to suppress the rebellion.

Vallandigham consulted with the Hon. George E. Pugh and others as his counsel, and then adopted the course of protesting against the jurisdiction of the court and against the authority for his arrest.

His grounds were that he was not amenable to any military jurisdiction, and that his public speech did not const.i.tute an offence known to the Const.i.tution and laws. To avoid the appearance of waiving the question of jurisdiction, his counsel did not appear, though offered the opportunity to do so, and Mr. Vallandigham cross-examined the witnesses himself, and called those who testified for him. The question of fact raised by him was that he had not advised forcible resistance to the government, but had urged action at the elections by defeating the party in power at the polls. That he did not in terms advocate insurrection was admitted by the judge advocate of the court, but the commission were persuaded that the effect of his speech was intended and well calculated to be incendiary, and to arouse any kind of outbreak in sympathy with the armed enemies of the country. The trial ended on the 7th of May, but the judgment was not promulgated till the 16th, proceedings in _habeas corpus_ having intervened. The finding of the court was that the prisoner was guilty, as charged, and the sentence was close confinement in Fort Warren, Boston harbor, during the continuance of the war.

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 embarra.s.sment 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 a.s.sumed 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.