Lincoln and Vallandigham

In 1863 General Ambrose Burnside declared martial law in Ohio and arrested Clement L. Vallandigham, a pro-slavery politician who had made a speech opposing the war and allegedly encouraged soldiers to desert the army of the United States. Vallandigham was tried by a military tribunal and exiled from the United States. In 1864 while in Canada Vallandigham became the Supreme Commander of The Order of Sons of Liberty (originally known as the Knights of the Golden Circle), many of whom discouraged enlishtment in the Union army, encouraged soldiers to desert, and then shielded the deserters. The Order also plotted to foment an armed rebellion in the northern states; that rebellion never took place. The treasonous entreaties of the Order were largely unsuccessful. In May of 1864 my ancestor Henry Huhn of MacArthur, Ohio, like over 300,000 other Ohioans before him, enlisted in the United States army. He served at City Point in Virginia.

In May of 1863 a meeting of members of the Democratic Party objected to Vallandigham's arrest, military trial, and exile and sent a letter to President Abraham Lincoln contending that Vallandigham was merely exercising his right to freedom of speech. In his letter to Erastus Corning of June 12, 1863, Lincoln responded to their concerns. 

Lincoln conceded that if Vallandigham was not encouraging soldiers to desert then he was wrongfully arrested. But if Vallandigham was encouraging desertion then he was rightfully arrested under the provision in the Constitution that provides, "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Lincoln wrote to the members of the meeting:

Take the particular case mentioned by the meeting. They assert [It is asserted] in substance that Mr. Vallandigham was by a military commander, seized and tried "for no other reason than words addressed to a public meeting, in criticism of the course of the administration, and in condemnation of the military orders of that general'' Now, if there be no mistake about this -- if this assertion is the truth and the whole truth -- if there was no other reason for the arrest, then I concede that the arrest was wrong. But the arrest, as I understand, was made for a very different reason. Mr. Vallandigham avows his hostility to the war on the part of the Union; and his arrest was made because he was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it. He was not arrested because he was damaging the political prospects of the administration, or the personal interests of the commanding general; but because he was damaging the army, upon the existence, and vigor of which, the life of the nation depends. He was warring upon the military; and this gave the military constitutional jurisdiction to lay hands upon him. If Mr. Vallandigham was not damaging the military power of the country, then his arrest was made on mistake of fact, which I would be glad to correct, on reasonably satisfactory evidence.

Lincoln then appealed to their sense of fairness. Does it make sense to punish those who commit a treasonous act while doing nothing to those persons who persuaded them to commit treason?  

I understand the meeting, whose resolutions I am considering, to be in favor of suppressing the rebellion by military force -- by armies. Long experience has shown that armies can not be maintained unless desertion shall be punished by the severe penalty of death. The case requires, and the law and the constitution, sanction this punishment. Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wiley agitator who induces him to desert? This is none the less injurious when effected by getting a father, or brother, or friend, into a public meeting, and there working upon his feeling, till he is persuaded to write the soldier boy, that he is fighting in a bad cause, for a wicked administration of a contemptable government, too weak to arrest and punish him if he shall desert. I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy.

Several members of the Knights of the Golden Circle were tried and convicted in military courts during the Civil War. After the war the Supreme Court reversed their convictions and ruled that military trials of civilians may not be conducted in places where the civil courts are open. Ex Parte Milligan, 71 U.S. 2 (1866).

In times and places of invasion or rebellion the public safety may require that freedom of speech be curtailed. People can rationally disagree whether Ohio was such a place in 1863. In the Corning Letter Lincoln invoked the example of General Andrew Jackson who arrested and detained a journalist and his lawyers at the Battle of New Orleans.

 After the battle of New-Orleans, and while the fact that the treaty of peace had been concluded, was well known in the city, but before official knowledge of it had arrived, Gen. Jackson still maintained martial, or military law. Now, that it could be said the war was over, the clamor against martial law, which had existed from the first, grew more furious. Among other things a Mr. Louiallier published a denunciatory newspaper article. Gen. Jackson arrested him. A lawyer by the name of Morel procured the U.S. Judge Hall to order a writ of Habeas Corpus to release Mr. Louiallier. Gen. Jackson arrested both the lawyer and the judge. A Mr. Hollander ventured to say of some part of the matter that "it was a dirty trick.'' Gen. Jackson arrested him. When the officer undertook to serve the writ of Habeas Corpus, Gen. Jackson took it from him, and sent him away with a copy. Holding the judge in custody a few days, the general sent him beyond the limits of his encampment, and set him at liberty, with an order to remain till the ratification of peace should be regularly announced, or until the British should have left the Southern coast. A day or two more elapsed, the ratification of the treaty of peace was regularly announced, and the judge and others were fully liberated. A few days more, and the judge called Gen. Jackson into court and fined him a thousand dollars, for having arrested him and the others named. The general paid the fine, and there the matter rested for nearly thirty years, when congress refunded principal and interest. The late Senator Douglas, then in the House of Representatives, took a leading part in the debate, in which the constitutional question was much discussed. I am not prepared to say whom the Journals would show to have voted for the measure.

It may be remarked: First, that we had the same constitution then, as now. Secondly, that we then had a case of Invasion, and that now we have a case of Rebellion, and: Thirdly, that the permanent right of the people to public discussion, the liberty of speech and the press, the trial by jury, the law of evidence, and the Habeas Corpus, suffered no detriment whatever by that conduct of Gen. Jackson, or it's subsequent approval by the American congress.

And yet, let me say that in my own discretion, I do not know whether I would have ordered the arrest of Mr. V. While I can not shift the responsibility from myself, I hold that, as a general rule, the commander in the field is the better judge of the necessity in any particular case. Of course I must practice a general directory and revisory power in the matter.

In normal times we draw the line between advocacy of lawbreaking and incitement of lawbreaking. An individual is within their rights to propose that violence is appropriate or even necessary at some point in the future. But if violence is imminent - if there is a clear and present danger that a serious law violation will occur if the individual says their piece -- then speech crosses the line from advocacy into incitement, and the public safety requires that we be able to punish such speech.

And there is yet another reason beyond protecting the general public for making incitement to riot a crime. Is it just that the fools in the audience who listened and obeyed the speaker go to prison while the "wily agitator" who ruined their lives goes free?