11
RUMORS THAT Vallandigham would be arrested had made the rounds of Dayton for more than a year. As early as October 1861, some Dayton Republicans had suggested it to silence his “dastardly influence.”1 Several Republicans revived the idea after his gala homecoming of March 13, 1863. The rumors became rather routine in the days that followed, prompting friends to offer to stand watch and foil attempts to seize him. Vallandigham waived the kind offers, for he needed notoriety to bolster his sagging political fortunes.
On the evening of May 4 Vallandigham retired early. He had returned to Dayton from another out-of-town speaking engagement, and, after a brief visit to the office of the Empire, sought the comforts of home. The Vallandigham household now numbered five. Besides his wife and ten-year old son, a sister-in-law and a nephew lived at 323 First Street. The sister-in-law, Miss Belle McMahon, doubled as companion and helpmate to Mrs. Vallandigham, whose nervousness and stability fluctuated with her health, moods, and anxiety. The nephew, John A. McMahon, had read law in Vallandigham’s office and in 1861 had formed a partnership with George A. Houk. Young McMahon, exceedingly capable, served as the man-about-the-house when his uncle was away in Washington or pursuing the campaign trail.
About two hours after midnight, when the Vallandigham residence was enshrouded in darkness, a special train from Cincinnati rolled silently into the Dayton station. Captain Charles G. Hutton, in charge of the extraordinary expedition, detailed a handful of men to watch the train while he led the rest of his company quietly through the town to 323 First Street. The captain threw a cordon around the Vallandigham residence, as if fearing that those inside might try to escape. Then Hutton, with a dozen soldiers at his side, rang the doorbell. Vallandigham appeared at an upstairs bedroom window and looked down upon the front steps. He could see the dark shapes of a cluster of men below. He could also see flashlights gleaming amidst the shrubbery and the glittering of bayonets, for the gas-light on the nearby street corner penetrated the darkness. He could hear the muffled voices of the officers, the whispering of the soldiers directly below, and the footsteps of some other armed men.
Vallandigham asked his callers what they wanted. Captain Hutton replied that he had been sent by General Burnside to make an arrest and suggested that Vallandigham come down and surrender. The defiant Democrat answered that he would not—no army officer had the right to arrest him. Nor did Burnside have the right to issue an order for his arrest. Captain Hutton repeated his request, again saying he had an order from General Burnside. The mention of the general’s name seemed to infuriate Vallandigham, and he snarled rather scornfully, “If Burnside wants me, let him come up and take me!” Then, leaning out of the bedroom window, he called loudly for the police, as if he expected them to come to his aid. Captain Hutton, very properly, then made his third request for Vallandigham to come down and surrender; he added that Vallandigham might as well stop shouting and that if he would not come down the soldiers would be forced to break down the door. Vallandigham replied that he was not dressed. The captain, in turn, assured him that he would be given time to dress. Vallandigham, instead, redoubled his shouts to the police. Captain Hutton then ordered his men to force the front door and the obedient soldiers attacked it with bars and axes. While the soldiers were pounding and pushing, Vallandigham returned to the front window with a pistol and fired three shots into the air, evidently hoping to alert his Dayton friends.
Vallandigham’s shouts, the three pistol shots, and the banging on the front door awakened the rest of the household. Mrs. Vallandigham, nearly crazed with terror, and her excited sister shrieked out of their bedroom windows for the police. Vallandigham, meanwhile, sat down on the edge of the bed to dress himself, his pistol nearby.
The heavy front door refused to yield to the soldiers and their implements, so a half dozen went around to the rear to try the back door. In time the rear door gave way and a dozen soldiers, with guns in hand, crowded through and felt their way in the darkness toward the front of the house and the stairway leading to the second floor. Captain Hutton stopped for a moment at the foot of the stairs and again called for Mr. Vallandigham to come down and surrender—he emphasized the third rather than the second syllable of the surname.
“My name is not Vallandigham,” replied the man whom Captain Hutton had come to arrest.
“I don’t care how you pronounce it,” replied the captain, “that’s the way we spell it and you are ‘my man.’ “
The defiant Copperhead refused to obey the order to come downstairs, and the soldiers, led by Captain Hutton, felt their way up the stairway. Meanwhile, Vallandigham locked the door of his bedroom, returned to the front window, and gave a shrill, peculiar whistle which was answered by someone in the distance. As the soldiers started to pound upon his bedroom door, Vallandigham stepped into an adjacent bedroom and locked that door too—putting two locked doors between himself and the soldiery. Using the butts of their muskets, the soldiers knocked out the panels of both doors and stepped through to corner their quarry. Someone had brought a light, and its rays revealed Vallandigham standing in the middle of the room, with his wife and sister-in-law standing and shrieking behind him. The two sisters, in their nightdresses, berated the soldiers for invading their privacy and called them beasts for violating their rights as citizens. Although Vallandigham had put his pistol in his trouser pocket, he did not use the weapon in self-defense. Half a dozen muskets, with bristling bayonets, were pointed at him. He surrendered to Captain Hutton, saying somewhat sarcastically, “You have now broken open my house and overpowered me by superior force, and I am obliged to surrender.”2
The soldiers lowered their muskets and Captain Hutton asked Vallandigham to lead the way downstairs. The prisoner gave his sobbing, hysterical wife a brief hug and stepped through the shattered panels of the two bedroom doors. The soldiers followed and Vallandigham led them down the stairs and out the front door.
The soldiers stationed in the yard reported that they had heard the ringing of fire bells, several pistol or musket shots, and some shouts or calls in the distance. But only a few Dayton citizens appeared and they gave no trouble. Captain Hutton asked his troops to reassemble, and a bugler sounded recall. As Vallandigham stepped into the street, Captain Hutton moved to his side. Surrounded by soldiers, Hutton and Vallandigham walked toward the railway depot. They boarded the waiting train, with its locomotive belching smoke and emitting steam. As soon as all were aboard, the train started for Cincinnati. Captain Hutton had performed his chore most expeditiously. Not more than thirty minutes elapsed between the arrival of the special train in Dayton and its departure for Cincinnati with the prisoner aboard. The train arrived in Cincinnati just before daybreak, and Captain Hutton conducted his celebrated prisoner to Kemper Barracks, a military post near Cincinnati, where he placed him in a cell as if he were a common criminal.
Vallandigham spent the early morning in his rough cell, awaiting a call from his Dayton friends and preparing a statement for the press. The address, entitled “To the Democracy of Ohio,” portrayed its author as “a martyr” whose only crime was love of his party, his country and its Constitution, and civil rights. He intended to give the document to his Dayton friends when they came to call and he hoped the press would broadcast it over Ohio and the entire North.
About mid-morning General Burnside ordered his prominent prisoner transferred to a luxurious room in the Burnet House, the best-known hotel in the entire Midwest. The general also ordered that Vallandigham be served a good lunch, courtesy of the United States government.
Later in the morning a delegation from Dayton arrived to make inquiries of General Burnside and consult with his prisoner. The group included Mayor William H. Gillespie and Vallandigham’s nephew, John A. McMahon. The grim general informed his callers that he intended to convene a military commission as soon as possible and give his political prisoner a speedy trial. Burnside then gave them permission to visit Vallandigham. It was a brief visit, closely supervised by several of Burnside’s aides. The conferees decided to ask George E. Pugh, George H. Pendleton, and Edward A. Ferguson to serve as Vallandigham’s counsel. Pugh and Pendleton were prominent Democratic politicians, and Ferguson was a respected Cincinnati lawyer. Vallandigham, of course, denied that a military commission had any right to try him, but his Dayton friends decided to seek counsel anyway. Before his callers left, Vallandigham “passed” to his nephew his address to the Democracy of Ohio and a note to his wife.
Rumors that Dayton Democrats might invade Cincinnati and demand the prisoner’s release or rescue him “by overpowering the guard” caused Burnside to order Vallandigham returned to Kemper Barracks. Still fearful that a rescue operation might be successful, the wary general then transferred his captive to Newport Barracks, across the river and in the midst of an armed camp. There the prisoner, still believing that “Time the Avenger” would “set all things even,” was locked up for the night.3
Dayton Democrats replied to Burnside’s arrest of Vallandigham with a first-class riot. Many Daytonians expressed indignation when they learned that soldiers had battered down the doors of Vallandigham’s house and carted him off to Cincinnati. They gathered on street corners, forming “crowds of excited men.” Some talked of rescuing Vallandigham; others, embittered, vented their wrath upon President Lincoln, General Burnside, and prominent Dayton Republicans. Supporters of the Lincoln administration went into hiding lest they become the targets of Democratic displeasure.
John T. Logan of the Dayton Empire fanned the flames of discontent with an inflammatory editorial. The headlines read:
VALLANDIGHAM KIDNAPPED
A DASTARDLY OUTRAGE!!!
WILL FREE MEN SUBMIT?
THE HOUR FOR ACTION HAS ARRIVED
The editorial mixed innuendo and direct accusation; it cursed the “cowardly, scoundrelly abolitionists” of Dayton and blamed them for advocating the arrest. It suggested that Democrats employ “blood and carnage” to save their “endangered liberties.” It characterized Vallandigham’s arrest “a hellish outrage,” and served to incite readers to revenge.4
Logan’s ill-advised editorial and liquor from the grog shops helped transform angry men into a mob which gathered in front of the Empire building, evidently seeking solace from that bastion of Democratic dogma. Across the corner, at 110 Main Street, stood the Journal building, housing the editorial offices and printing plant of the Republican newspaper which had criticized Vallandigham so unmercifully. The Journal building symbolized Vallandigham’s arrest, the impending draft, and “Black Republicanism.” Some members of the mob hurled choice epithets at the Journal building, while a few bolder spirits threw stones at the windows. Several rash rascals made balls of pitch, applied a match, and tossed their flaming missiles across the street. One such “turpentine ball” landed among some newspapers in the editorial office of the Journal and “in an incredibly short space of time, flames burst from the roof.”5 The misguided malcontents cheered. Another bastille was being destroyed! Democratic hotheads of Dayton thus gave a devilish answer to Burnside’s arrest of an ex-congressman seeking to refurbish his political influence.6
The fire spread to adjacent buildings, consuming nearly half a block and destroying buildings worth $89,000—a sacrifice to the god of vengeance. The Dayton fire department had trouble checking the spread of the flames, for mob members interfered with the work of the red-helmeted firemen.
Fearing a riot, some perceptive Republicans had earlier asked General Burnside to detail some troops to Dayton. Their arrival brought quick suppression of the riot. One soldier shot a rioter cutting a water hose, the mob dispersed, and the firemen then performed heroically. At the suggestion of Republicans, General Burnside suspended the publication of the Empire, arrested editor Logan, and put Montgomery County under martial law.7
No sober Dayton Democrat endorsed the action of the mob. Most recognized that Logan’s editorial of May 5 had encouraged an angry people to open defiance, and they blamed his “crazy article” as much as they blamed Burnside’s “General Orders, No. 38” for the riot. It was still another case of imprudent acts producing unfortunate results.8 Thomas O. Lowe, recognized in Democratic circles as a disciple of Vallandigham, wrote an “open letter” to allay the excitement and ask for a return to reason, law, and order. After stating that “mobocracy” and “democracy” had opposite meanings, young Lowe told his readers that he believed in the right of revolution, but other means of expressing a grievance still existed.
Whenever people are crushed beneath the heel of despotism, and have no other means left them of obtaining the inalienable rights of man [wrote Vallandigham’s disciple] it is their sacred right after long suffering to arise in their might against their oppressors. The circumstances justifying revolution do not exist in our country now. Although in my judgment, there have been many unwise, arbitrary and cruel things done by the present administration towards their political opponents in the North, we have still left us the great remedy for all political wrongs, the ballot box. As long as there is any alternate besides absolute slavery, an appeal to arms is a high crime against God and humanity.9
It was the advice of a moderate reacting to mob violence and the threat of anarchy. Young Lowe, like his mentor, was much more a student of Edmund Burke than of John Locke.
The same telegraphic wires which carried the story of Vallandigham’s arrest and the Dayton riot also broadcast the details of the dramatic defeat of General Joseph Hooker’s army in the Battle of Chancellorsville. Union casualties totaled more than 17,000 as the Army of the Potomac suffered another stunning defeat. If Vallandigham had expected that the story of his arrest would give him headlines and widespread sympathy, he was somewhat mistaken. Editors, both Democratic and Republican, headlined the Battle of Chancellorsville, and Vallandigham’s arrest seemed of secondary importance.
Nevertheless, the arrest drew fire from many quarters. Dr. John McElwee of the Hamilton True Telegraph, regarding himself as a personal friend of Burnside’s prisoner, wrote of “the most atrocious outrage ever perpetrated in any civilized land.”10 Samuel Medary not only called Burnside’s act “a great blunder,” but warned the Lincoln administration that civil war might visit the Midwest if rights were trampled upon any more.11 Lecky Harper applied the old quotation “The blood of the martyrs is the seed of the Church” to Vallandigham’s arrest, wrote of the “Reign of Terror” which had visited his country, and predicted that history would accord him honors.12 Perhaps Vallandigham was disappointed because James J. Faran of the Cincinnati Enquirer protested so mildly, but General Burnside had intimidated him, too. On the day that he ordered Vallandigham’s arrest, he called in Faran and S. B. Wiley McLean, editors and proprietors of the Enquirer, and ordered them to play the part of patriots unless they too wanted to look out through the iron bars of a prisoner’s cell.13
Nearly every Democratic newspaper published Vallandigham’s address “To the Democracy of Ohio” which McMahon had smuggled out of the prisoner’s room in Cincinnati. After it appeared in one Democratic newspaper, other editors republished it and gave it nation-wide circulation. The address read:
To the Democracy of Ohio: I am here in a military bastile for no other offense than my political opinions, and the defense of them and the rights of the people, and of your constitutional liberties. Speeches made in the hearing of thousands of you, in denunciation of the usurpation of power, infractions of the Constitution and the laws, and of military despotism, were the causes of my arrest and imprisonment. I am a Democrat; for Constitution, for law, for Union, for liberty; this is my only crime. For no disobedience to the Constitution, for no violation of law, for no word, sign or gesture of sympathy with the men of the South, who are for disunion and Southern independence, but in obedience to their demand, as well as the demand of Northern Abolition disunionists and traitors, I am here today in bonds, but
‘Time, at last, sets all things even.’
Meanwhile, Democrats of Ohio, of the Northwest, of the United States, be firm, be true to your principles, to the Constitution, to the Union, and all will yet be well. As for myself, I adhere to every principle, and will make good, through imprisonment and life itself, every pledge and declaration which I ever made, uttered or maintained from the beginning. To you, to the whole people, to time, I again appeal. Stand firm! Falter not an instant!
C. L. Vallandigham14
Although some moderate Republicans expressed concern over General Burnside’s precipitous action, most of the influential editors of the party endorsed the arrest. Isaac Jackson Allen of the Ohio State Journal did not disappoint General Burnside or his quartermaster and top aide, Francis Hurtt. Both the Cincinnati Gazette and the Cincinnati Commercial endorsed the arrest and wrote of the need to crush traitors in the North. The Dayton Journal, which had earlier recommended Vallandigham’s arrest, neither condemned nor defended Burnside. Dayton Republicans tried to resurrect the Journal from the ashes; it reappeared in reduced size and was printed on another press for a week.15
While Republicans and Democrats in Ohio debated the necessity and desirability of Vallandigham’s arrest, General Burnside took steps to set the wheels of a court-martial in motion. There was precedent for such arbitrary action, for early in the war Major General John C. Frémont, commanding the Department of the West, had arrested Edmund J. Ellis, a Missouri editor. Frémont had convened a court-martial, which found editor Ellis guilty on every charge and sentenced him to be exiled “out of Missouri.” The Ellis case came to the attention of Simon Cameron, Secretary of War, in 1861; he not only approved the summary action, but said he would follow the same procedure in other departments of the army.16
Furthermore, General Burnside must have known that no jury in a civil or criminal court in Ohio would find Vallandigham guilty either of violating “General Orders, No. 38” or of treason. Having a bird in the hand, the headstrong general had no intention of letting it return to the bush. He therefore selected a panel of eight army officers, all his subordinates and servants, to try the case. He set ten o’clock the next morning (May 6) as the starting time for the trial.
Vallandigham awakened early on the morning of the sixth in his heavily-barred room in the Newport Barracks. From his window he witnessed the roll call after reveille and saw “Old Glory” revealing its stars and stripes on the nearby flagpole. He heard the regimental band playing “Hail Columbia, Happy Land” while he awaited word regarding his trial. Later in the morning, a squad of soldiers carrying loaded rifles and glistening bayonets called at Vallandigham’s cell to escort him across the river to the room where the military commission had convened, with Brigadier General Robert B. Potter presiding and Captain James M. Cutts serving as judge advocate.17
After the prisoner was escorted into the room, the judge advocate read General Burnside’s order appointing the members of the military commission. Next he asked the prisoner if he had any objection to offer against any of the eight members of the commission. Vallandigham scanned the faces of the eight members confronting him. No, he was not acquainted with any of them, so he had no objection to any individual. At the time the prisoner did not know that only one of the eight was a citizen of Ohio, one was “an unnaturalized foreign adventurer,” and another had once been convicted for keeping “a disreputable house.” Nor did he know then that Judge Advocate James M. Cutts would soon afterwards be apprehended while standing on a chair peaking through a transom into a lady’s bedchamber in the Burnet House.18
Vallandigham next turned to the presiding officer, Brig. Gen. Robert B. Potter, to protest that the military commission had no authority to try him. He belonged to neither the land nor the naval forces of the United States, nor the militia in actual service, so he was only under the civil courts of the land. General Potter shrugged his shoulders, then shook his head. He seemed perplexed by the legal language which Vallandigham employed. Judge Advocate Cutts ignored the prisoner’s protest and read the charges against him: “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.” Next the judge advocate read the specification which stated when, where, and how the prisoner had violated “General Orders, No. 38,” after which he asked the prisoner “what his plea was.” Vallandigham refused to enter a plea and continued to insist that the military court had no right to try him. The presiding officer interrupted Vallandigham’s argument, ordering a plea of “Not Guilty” entered upon the record.19
The court then offered Vallandigham a chance to consult his counsel, recessing for that purpose until 1:30 P.M. First, however, the prisoner asked for a delay in the trial in order to subpoena Fernando Wood of New York City as a witness. The presiding officer consulted the judge advocate and they decided against any delay—they believed the prisoner was using stalling tactics.
When the court reconvened, General Potter asked Vallandigham if he desired to have his counsel present for the proceedings. Feeling that he would be sanctioning the trial if his counsel was invited into the courtroom, Vallandigham answered no. So Messrs. Pugh, Pendleton, and Ferguson remained in an adjoining room.
Judge Advocate Cutts then called his first witness, Captain Harrington R. Hill, who testified that he had attended the Democratic rally at Mount Vernon on May 1 and had heard Vallandigham’s speech from beginning to end. He had occupied a spot near the end of the platform, a scant six feet from the speaker. He referred constantly to his copious notes and reconstructed Vallandigham’s speech rather extensively. Several times the attentive prisoner interrupted Captain Hill, either to make a minor correction or to offer words of explanation. After Hill, prodded by Cutts, completed his account, Vallandigham cross-examined him. He was still interrogating Captain Hill when the clock showed 3:30. Brigadier General Potter then adjourned the trial until the next morning.
The second day’s trial began with a review of the previous day’s proceedings and testimony. The judge advocate again called Captain Hill to the stand, and Vallandigham probed all corners. Next, Captain John A. Means was called to the stand; he was the second of the two aides who had been sent to Mount Vernon to take notes on Vallandigham’s speech. He had occupied a position directly in front of the stand, about ten feet from Vallandigham, and had heard “the whole of the speech.” His testimony corroborated most of what Captain Hill had said earlier. Vallandigham, still acting as his own lawyer, cross-examined Means. The prisoner limited his second cross-examination to twenty minutes. The judge advocate rested his evidence.
Vallandigham asked the presiding officer to recess the trial for fifteen minutes so that he could consult his counsel. The prisoner returned to the courtroom with the Hon. Samuel S. Cox, who had hurried down to the Queen City to testify in Vallandigham’s behalf. General Potter decided to let Cox testify, and he took the witness stand. The Columbus congressman stated that he had heard Vallandigham’s entire speech, paying close attention, since he was scheduled to speak next. Cox steadfastly denied that Vallandigham had applied any epithet to General Burnside, as the other witnesses claimed he had. Cox also stated that the Dayton Democrat had denounced military orders generally, not “General Orders, No. 38” specifically. Furthermore, Cox affirmed, Vallandigham had not counseled resistance to the laws. He, as well as other speakers at Mount Vernon, had denounced the perversion of the original objectives of the war and had decried the move to bring about peace by recognizing the independence of the Confederacy. Vallandigham, he declared, still wanted peace and reunion.
The judge advocate admitted that it seemed feasible that Vallandigham had denounced military orders generally and not “General Orders, No. 38” specifically. The prisoner then dropped his request to call other witnesses and asked for time to prepare a written defense. The court reluctantly acquiesced, recessing for half an hour while he wrote his report or protest.
When the military commission reconvened at 5:00 P.M., Vallandigham asked that Cox’s testimony be read aloud. The judge advocate consented, confident that the court would return a verdict favorable to Burnside. The defendant concluded the court session by reading aloud his own statement. It challenged the legality of the arrest and trial, emphasizing that military courts had no jurisdiction over him. He insisted upon a civil trial according to due process of law. Citizens certainly had the right to criticize public policy and public servants. And he closed by avowing that he had never counseled disobedience to the Constitution, nor resistance to law or lawful authority.20
After Vallandigham read his written protest, the judge advocate asked that the room be cleared “for deliberation.” The commission members dared not challenge their superior’s action. Thus they found the prisoner “Guilty” of the charge and the specifications, with the exception of one of the thirteen items listed. The members had more trouble agreeing on what penalty to impose. They discussed exiling the prisoner to the Confederacy. Shooting him, they concluded would be exceedingly extreme and would make him a martyr. Eventually they agreed upon imprisonment.
The presiding officer called Vallandigham before him to hear the sentence read. He would 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.” General Burnside, after approving the findings of his hand-picked military commission, selected Fort Warren in Boston Harbor as the place of “confinement.”21
Two days after the military commission brought forth its verdict, the Hon. George E. Pugh moved for a writ of habeas corpus on behalf of Mr. Vallandigham before Judge Humphrey H. Leavitt of the United States Court for the Southern District of Ohio. Although Congress (by act of March 3, 1863) had authorized “the President . . . to suspend the privilege of the writ,” he had not done so in Ohio. Furthermore, Pugh and Vallandigham believed Taney’s decision in Ex Parte Merryman had repudiated such earlier action in the Washington sector. Judge Leavitt, leaning backward to cooperate with the military, asked that notice of Pugh’s application be given to Burnside. The impulsive general, in turn, prepared a forthright defense of his authority and his actions. He claimed a legal and constitutional right, as commander of the Department of the Ohio, to arrest and try Vallandigham. Evidently Burnside regarded the states north of the Ohio River as “a vast army camp” in which every soldier and civilian was subject to military authority.22 Pugh, arguing in Vallandigham’s behalf, countered with able and convincing arguments in behalf of habeas corpus action, citing English and American precedents. He contended that civil rights were paramount, not subject to the whims of military men.
Pugh was followed by Benjamin F. Perry, a capable Cincinnati lawyer, who defended Burnside’s summary action. He appealed to patriotic passion, praised the grand old flag, and endorsed “the doctrine of necessity.” Pugh arose to challenge Perry’s arguments, speaking with even greater eloquence than he had before. He made an impassioned plea for civil rights, sacred and essential in all but dictatorships. “We cannot move a single step,” Pugh properly asserted, “but we do not see with what jealous care our fathers handcuffed military power.”23 At the conclusion of Pugh’s plea, Judge Leavitt took the case under advisement, expressing the hope that he might be able to render a decision in about a week.
Vallandigham spent the week in Room 246 of the Burnet House; General Burnside had him transferred to these more comfortable quarters from the barren and barred room in the Newport Barracks. The new room was well guarded, however, and the guards had instructions to shoot to kill in case of an attempted escape or rescue.24 Vallandigham had quite a few visitors from Dayton, with Mayor Gillespie, Dr. Jefferson A. Walter, his nephew, and David Houk repeatedly stopping to buoy his hopes. George H. Pendleton, congressman from Cincinnati, and Washington McLean, Democratic “boss” of Hamilton County, came every day for an extended visit. George Pugh also spent most of his spare hours with Vallandigham.
The prominent prisoner found time to write a dozen letters, and his Dayton callers smuggled them out of Room 246. His letters to his wife indicated concern for her health; he tried to build up her faith in the future and instructed her to avoid a nervous breakdown. He assured her that time would right all wrongs and bring them “days of prosperity, happiness, and exultation.” “I depend on you to be self-possessed and patient,” he stated in one letter, “no matter what happens to me.” This was an indication that he did not expect a favorable ruling from Judge Leavitt. Vallandigham still retained his defiant spirit. “Remember me to my friends,” he added once, “. . . enemies I will remember myself.”25
The impenitent prisoner also wrote two letters to Manton Marble, the influential editor of the New York World. In the first Vallandigham thanked Marble for his “noble articles” denouncing Burnside’s high-handed practices. The second anticipated that Judge Leavitt would surrender principle and bow to expediency. In fact, he thought Judge Leavitt seemed to be “in league with Burnside.” Vallandigham predicted that posterity would link Leavitt to “Empson & Dudley & Jeffries [sic], . . . the basest & most servile judges of the worst periods of English Tyranny.” He asked Marble “to open up on him [Leavitt] till his infamy becomes historic.”26
While the public awaited Judge Leavitt’s decision, rumors concerning the disposition of Vallandigham, if he was not freed by the writ, made the rounds of the newspapers. Speculation begot rumors, and rumors enhanced the speculation. It was reported, for example, that Burnside’s preference had been a death sentence—execution by a firing squad. Another report had Vallandigham being sent to the Dry Tortugas, a group of ten coral keys some seventy miles west of the southermost tip of Florida. Since the military commission which had tried Vallandigham had considered exiling him to the Confederacy, reports that he might be exiled also made the rounds. Then of course there was speculation as to what prison might be selected by General Burnside if Vallandigham was confined to a felon’s cell.27
After consulting with General Burnside, Judge Leavitt ruled against the writ of habeas corpus sought in Vallandigham’s behalf. He chose to ignore Marshall’s decision in United States vs. Burr and Taney’s decision in Ex Parte Merryman. Since he had weak grounds for his refusal, he turned to the concept of “moral guilt.” There was a type of treason, Leavitt argued, not covered by the law or the Constitution. This was “moral guilt.” Those who live under the protection and enjoy the benefits of the benign government “must learn that they cannot stab its vitals with impunity.” Those who criticize a government in time of crisis “should expect” to be treated arbitrarily, for necessity is the law of self-preservation. “The sole question,” Judge Leavitt stated, “is whether the arrest was legal; . . . its legality depends on the necessity which existed for making it, and of that necessity . . . this Court cannot judiciously determine.”28
Aware that General Burnside would ignore a writ of habeas corpus if it was issued in Vallandigham’s behalf, Judge Leavitt bowed to expediency and the will of the military. In effect, he allowed the general to intimidate him. He allowed practicality and his own political predilections to twist the law. “Not since the days of Empson, Dudley, or Jeffrey[s],” Vallandigham said four years later, “has such servility to executive power been exhibited.”29
Two days after Judge Leavitt ruled in the case, Burnside announced that he had selected Fort Warren for the confinement of his prisoner.30 Vallandigham, of course, hoped that the summary treatment accorded him would make him a hero and martyr in the eyes of those who loved liberty and glorified civil rights. He dreamed that a public reaction would cause the bastilles to crumble and give him the governorship of Ohio and recognition in history. He could repeat Richard Lovelace’s famous quotation: “Stone walls do not a prison make, Nor iron bars a cage.”
1 Petition (undated), signed by F. J. Tytus and Jacob Morris, addressed to William H. Seward, in Official Records, ser. 2, 2: 128-29.
2 Entry of 5 May 1863, Daniel Read Larned, “Journal,” Daniel Read Lamed Papers, Library of Congress; Cincinnati Daily Gazette, 5, 6 May 1863; Cincinnati Daily Enquirer, 6 May 1863; Nashville Daily Union, 26 May 1863; Richmond (Va.) Sentinel, 13 May 1863; Vallandigham, Vallandigham, pp. 255-57. Vallandigham related the account of his arrest at a Democratic rally on 10 October 1867, and it was reported in the Dayton Daily Ledger, 30 October 1867.
3 Cincinnati Daily Enquirer, 5, 6 May 1863; entry of 5 May 1863, Larned “Journal.”
4 Dayton Daily Empire, 5 May 1863; Dayton Daily Journal, 6 May 1863.
5 Thomas O. Lowe to his brother William, 11 May 1863, Thomas O. Lowe Papers, Dayton and Montgomery County Public Library.
6 Ibid.; Dayton Journal, 6 May 1863; Cincinnati Daily Commercial, 7 May 1863.
7 Burnside, “Special Orders, No. 164,” published in the Dayton Daily Journal, 7 May 1863. The Empire property was auctioned off on May 23. Nine Vallandighamers arrested during the riot were released in Cincinnati three weeks later, after swearing anew allegiance to the government. Dayton Democrats revived the Empire on August 6, 1863, importing George Barber (one-time editor of the Nashville Republican Banner) as the new editor.
8 Thomas O. Lowe to his brother William, 11 May 1863, Lowe Papers.
9 Thomas O. Lowe to editors of the Dayton Journal, 6 May 1863, manuscript in the Lowe Papers, printed in Dayton Daily Journu1 on 7 May 1863.
10 Hamilton True Telegraph, 11 June 1863.
11 Crisis (Columbus), 13 May 1863.
12 Mount Vernon Democratic Banner, 9, 16, 23 May 1863.
13 Entry of 6 May 1863, Lamed “Journal.”
14 Crisis, 13 May 1863. The address also appears in Vallandigham, Vallandigham, pp. 260-61.
15 The Journal appeared as a 12″x18″ tabloid and was printed on presses which printed the Brethren (Mennonite) Church weekly. Daytonians, meanwhile, raised $6,000 to reestablish the Journal and invited William D. Bickham (aide-de-camp on the staff of Maj. Gen. William S. Rosecrans) to become editor. Bickham accepted the invitation and assumed control of the Journal on 11 May, six days after the riot. Bickham made the Journal into one of Ohio’s best-known newspapers.
16 The Ellis case receives rather cursory treatment in Dean Sprague, Freedom under Lincoln (Boston, 1965), p. 230. Despite its title, Sprague’s book is concerned in the main with only the first year of the war.
17 Vallandigham’s account, in Dayton Daily Ledger, 30 October 1867.
18 Ibid.; Crisis, 30 October 1867.
19 “Proceedings of a Military Commission, Convened in Cincinnati, May 6, 1863,” Citizens’ File, 1861-1865, War Department Collection of Confederate Records, National Archives.
20 Ibid.
21 Ibid. The proceedings of the military commission were later published in Official Records, ser. 2, 5: 633-46, and in Vallandigham, Vallandigham, pp. 262-84.
22 28 Federal Cases 923 (1863).
23 Ibid.; Cincinnati Daily Gazette, 16 May 1863.
24 Vallandigham, quoted in Dayton Daily Ledger, 30 October 1867.
25 Vallandigham to “My Very, Very Dear, Dear Wife,” 14 May 1863, published in Vallandigham, Vallandigham, pp. 284-85.
26 12, 15 May 1863, Manton Marble Papers, Library of Congress.
27 Washington (D.C.) Chronicle, 14 May 1863; Richmond Sentinel, 19 May 1863; Vallandigham’s speech of 24 October 1867, published in Crisis, 30 October 1867. “Pendleton telegraphed you this afternoon,” Vallandigham once wrote to his wife, “that the absurd Tortugas story was denied by authorities.” Vallandigham, Vallandigham, pp. 284-85.
28 28 Federal Cases 923 (1863).
29 Crisis, 30 October 1867.
30 Official Records, ser. 2, 5: 657.