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CLEMENT L. VALLANDIGHAM, like most controversial persons, was a complex individual who could fit no single mold. Although he was a conservative in thought and action most of the time, he occasionally spoke like a radical or a reactionary.
Certainly his contemporaries regarded his defiance of General Burnside as a radical act. He used radical means (arrest and martyrdom) to bolster his sagging political fortunes in 1863. As a gadfly in the Thirty-seventh Congress, he made some radical statements and even introduced a resolution calling for the arrest of President Lincoln if the rights of citizens continued to be violated. Those who gave property rights the highest priority were shocked when Vallandigham endorsed the radical doctrine of retaliation and retribution after Republican soldiers and civilians mobbed the offices of the Dayton Empire and the Crisis (Columbus) early in 1864.1 Eastern bankers and Wall Street spokesmen thought his advocacy of Greenbackism during the late 1860s made him a dangerous radical.
On occasion, however, Vallandigham talked and acted like a liberal. He knew the Kentucky Resolutions of 1798 by heart and claimed they were part of his political creed. He regarded himself as a disciple of Jefferson, frequently quoting the sage of Monticello upon such subjects as freedom, rights, and liberties. Like Jefferson, he would leave the individual as unrestricted as possible in his search for self-expression and self-fulfillment. During the Civil War years no one spoke out more boldly than Vallandigham against executive usurpation and arbitrary arrests and in behalf of civil rights. Like so many of the English liberals of his day he espoused free trade, except on the one occasion when he sought protection for the flax growers of his congressional district. When he tried to abolish capital punishment in Ohio or insisted that rabbis should have the right to serve as regimental chaplains, he took stands which stamped him as a liberal. It seemed at times that Vallandigham was the congenital champion of the underdog.2 Then, too, his advocacy of “New Departure” practices put him at the head of a small group anxious to reform and revitalize the Democratic party.
On most issues, however, and especially during the war years, Vallandigham was essentially a conservative. His early exposure to Calvinism, his training in law, and his devotion to Edmund Burke helped shape that conservatism. He resisted the changes which the revolution operating within the Civil War was imposing upon the country. He opposed the ascendancy of industrialism, viewing himself as the champion of farmers and workingmen. He was the idol of the Butternuts, backwoods farmers who regarded themselves as Jacksonian egalitarians, though they never dreamed that such a term might be applied to them. Vallandigham also opposed the centralization of the government and the dissipation of states’ rights, recognizing that Lincoln and the war were destroying federalism and transforming the character of the government. Then, too, he opposed the enlargement of the war aims, especially the addition of emancipation as governmental policy. He objected to Lincoln’s proclamation of emancipation and the Thirteenth Amendment, and to the Fourteenth and Fifteenth amendments during the postwar years. Like Burke he believed changes should be evolutionary and not revolutionary and that the deep roots of the past should be continually cultivated.
There were times—few and far between—when C.L.V. talked more like a reactionary than a conservative. Even after emancipation became official policy he talked of turning the calendar back, espousing the restoration of “the Union as it was” before the Civil War—with states’ rights and with slavery. His endorsement of racism, his belief that the white man should have all the rights and the black man none, put him in a class with the plantation owners of antebellum days.
Vallandigham’s personality was as complex as his political and socioeconomic views. He could be most pleasant, charming, and friendly—graciousness personified. He attracted devotees and friends whose loyalty knew no bounds, and many workingmen and yeoman farmers regarded him as their champion. On the other hand, he could be petty, vindictive, and stubborn. In his own personal life he believed he practiced self-discipline and self-control; he had contempt for those who wore their feelings on their sleeves and for the wishy-washy fellow incapable of making up his mind. Vallandigham was ambitious, more for political honor and prestige in law than for vast property holdings or a fat bank account.
He was keen, well-read, and very knowledgeable, and he was wont to believe his views and ideas superior to those of others; he tended to be egotistical and conscious of his own rectitude, believing that time would vindicate him. His self-confidence sometimes led him to have naught but scorn for those who opposed him and there was a certain intransigence in his views. In short, he possessed those qualities which characterize the dissenter and the martyr: strong convictions, a degree of inflexibility, consciousness of his own rectitude, and courage—defined as the quality of mind which allows one to face dangers and threats without fear. His belief that he was right helped strengthen his convictions that his party owed him political compensation in the form of a seat in the United States Senate for the wrongs he had suffered during the war and for his martyrdom. He believed that the public reaction to his arrest and imprisonment had helped save civil rights which were endangered by the Washington-based despotism and the arbitrary practices of military commanders like General Burnside.
Had he confined his considerable talents to law, he might have become one of the great lawyers of his generation. But his desire for attention, publicity, and applause drew him into public life. Having once heard the siren call of politics, he could not resist. “If I had sense enough to let politics alone and attend to my professional business,” he once remarked to a friend, “I might easily make $15,000 a year.”3 Actually, politics brought him more disappointments than successes. He won only two of eight bids for a seat in the lower house of Congress, and he never gained that senate seat he wanted so badly in the postwar years.
Probably the aspect of Vallandigham’s life that is most significant for the contemporary reader is his role as a dissenter during the war, when the limits of dissent were vague and undefined. Dissension, most certainly, was no new phenomenon in American history. During the Revolutionary War, when “Patriots” held the reins of power, dissenters (the self-styled “Loyalists”) were numerous and paid a heavy penalty for their devotion to the Crown; the Patriots not only intimidated the Loyalists but confiscated their estates and drove them into exile—“to hell, Hull, or Halifax.” Patriots defined a Loyalist as “a thing whose head is in England, whose body is in America, and [whose] neck ought to be stretched.”4 After the war, Patriots wrote their own definitions of justice, honor, and treason into history.
Those who opposed the War of 1812 also found themselves treated with contempt in the years that followed. It was generally believed that if those who attended the Hartford Convention of 1814 had not courted treason, they had at least flirted with it. “The federalist party, from its apparent sympathy with the Hartford Convention,” wrote a reputable historian more than a hundred years later, “received a death blow from which it did not recover.”5 The nationalistic surge which followed the War of 1812 prompted Americans to view that questionable conflict as “a fight for a free sea” and “a crusade in defense of national honor,” and to characterize the Hartford Convention as “an ugly incident.”6 Historians justified the war, even claiming that it had “given strength and splendor to the chain of the Union.”7 Conversely, they felt compelled to treat dissenters of the 1812-1816 era as men guilty of disloyalty.
Those who opposed the Mexican War, whether on political or moral grounds, also suffered at the hands of posterity. The spirit of Manifest Destiny, centered in a belief in the nation’s greatness, helped to evolve the doctrine that dissenters during the Mexican War had played “an ignoble role” and that the contest had strengthened the fibers of the country. Flag-waving historians went so far as to argue that wars were often the only means of advancing civilization and that support of a war was a plain patriotic duty.8
Civil War dissenters—and here Vallandigham stands at the head of the list—have also been treated critically by historians. During the postwar years, especially the 1885-1900 era, a nationalistic revival swept the United States. Nationalism became a religion; even Walt Whitman defined the nation as a living organism and the instrument through which citizens could best realize and express their divine sense of fellowship. Nationalism underwrote the big navy policy, fostered the dream of empire, introduced United States history into high schools, furnished a setting for the Columbian Exposition of 1892-1893, and laid the base for Frederick Jackson Turner’s “frontier thesis.” It also promoted the apotheosizing of Lincoln and helped Americans accept Republican opinions and contentions of Civil War days as fact. Copperheads, consequently, emerged as men whose hearts were black, whose blood was yellow, and whose minds were blank.
Many Republicans who had manufactured political propaganda during the Civil War put their partisan views into print as “history” in the postwar years. Whitelaw Reid, who edited the Cincinnati Gazette and accused Vallandigham of disloyalty, wrote a two-volume work, Ohio in the War,9 which became the standard text on wartime politics for half a century. Horace Greeley, who sometimes called a spade a plow in the New York Tribune, wrote a book which mixed fact and partisanship in a readable ratio. Greeley’s book, The American Conflict, accused Vallandigham of cooperating with the rebels and heading a secret society engaged in treasonable activities.10 Reid and Greeley were but two of the many11 whose partisan contentions muddied the stream of history.
Although postwar propagandists and historians sincerely believed that Clement L. Vallandigham had overstepped the limits of dissent, federal courts failed to substantiate their contentions. Furthermore the courts failed to lay down specific boundary lines between loyalty and treason; students of the law could not agree among themselves to what extent citizens should give up traditional rights in the interest of national unity in time of war and when citizens should bow to patriotic conformism.
The question of wartime rights received consideration in three well-known court cases which had Civil War settings—two of the decisions were in Vallandigham’s favor. The first case, Ex Parte Merryman (1861), involved an arrested Maryland secessionist whom President Lincoln refused to release, even under a writ of habeas corpus from Chief Justice Taney, sitting on circuit duty. When military officials failed to honor Taney’s writ, he prepared a carefully worded opinion which denounced military defiance of judicial powers, insisting that any suspected treason should have been dealt with by judicial process. He accused the president of usurping power and put the responsibility of maintaining constitutional guarantees squarely upon Lincoln.12 Vallandigham always believed Taney’s decision a victory for civil rights and a reprimand of the Lincoln administration.
In Vallandigham’s own case, two different courts were involved and both retreated from the forthright stand taken by Taney in Ex Parte Merryman. Judge Humphrey H. Leavitt, sitting in the U.S. circuit court at Cincinnati, evaded an answer to the question of civil rights in wartime in order to prevent a clash between civil and military officials. Leavitt, trying to stay in the good graces of General Burnside and the Lincoln administration, ignored Taney’s ruling and wrote a decision which made champions of civil rights gasp. “The sole question,” Judge Leavitt stated, “is whether the arrest was legal, and . . . its legality depends on the necessity . . . for making it, and of that necessity . . . this court cannot judicially determine.”13
When Vallandigham’s case went up to the United States Supreme Court on a writ of certiorari, those august judges also found an excuse to avoid defining the limits of dissent in wartime and ruling on the Daytonian’s constitutional rights. The judges used the lame excuse that the court’s authority, as derived from the Constitution and the Judiciary Act of 1789, did not extend to the proceedings of a military commission.14 Although the high court’s evasive tactics and timidity may have pleased President Lincoln and General Burnside, Democrats who glorified the rights of citizens protested in chorus. They pointed out that, in essence, the Supreme Court had said that if one’s rights were not ravaged according to law, one had no recourse to justice in the courts.15
The third important civil rights case of the Civil War period came out of Indiana and paralleled Vallandigham’s in many ways. Lambdin P. Milligan and several other prominent Indiana Democrats were arrested by military authorities at Governor Oliver P. Morton’s request shortly before the fall elections of 1864 and tried by a military commission. The indictment stated that Milligan et al. were involved in a vague plan to release Confederate prisoners from several Northern prison camps and had plotted to establish a “Northwest Confederacy.” Found guilty by the military commission, Milligan and two others were sentenced to be hanged. Friends of the condemned men secured a postponement of the death penalty pending an appeal to the Supreme Court. Ignoring the action of the court in Ex Parte Vallandigham, the judges this time accepted jurisdiction and rendered an opinion sometimes characterized as “one of the bulwarks of American civil liberty.”16 Judge David Davis read the court’s opinion in Ex Parte Milligan and advanced the principle that a military trial in an area where the civil courts were open and functioning was both extraordinary and illegal. “Martial law can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction,” Judge Davis stated, “. . . the Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”17
While the Radicals attacked the court because Ex Parte Milligan seemed to threaten the system of military government which they were planning for the South, Clement L. Vallandigham and most Democrats applauded the decision. Not only did the onetime exile believe that Davis’s decision had vindicated him, but he claimed that the court had “convicted” Lincoln and his “agents” of “high crimes against the Constitution.” He also took a trip to New York City and Washington, D.C., to investigate the desirability of instituting a damage suit against ex-Governor David Tod and General Ambrose E. Burnside in order to gain a measure of public revenge.18
Although Ex Parte Milligan challenged the right of military commissions to deprive citizens of their rights, the court made no attempt to set the limits of dissent—to specify when criticism of the Lincoln administration gave aid and comfort to the enemy and bordered on treason. Whereas Republicans equated dissent with treason, Vallandigham insisted upon practicing the same rights during the war that he exercised in times of peace. He refused to accept the principle that the character of every act depended upon the circumstances in which it was committed. He also refused to believe that wartime restrictions on rights, whether partial or arbitrary, were essentially a part of the trend toward enforced unity which total war demanded.
Although no court case arising out of the Civil War defined the limits of dissent, a later court continued to wrestle with the question of wartime rights. One case came out of World War I and bore the designation Schenck v. United States (1919). The decision justified governmental restriction upon the rights stated in the First Amendment during time of war. “When a nation is at war,” the court’s decision read, “many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” If an actual obstruction of the recruiting services could be proved, liability for words which produced that effect might be enforced. The most stringent protection of free speech, the opinion continued, would not protect one who falsely shouted “Fire!” in a theatre, thereby causing a panic.19
If the Schenck v. United States decision had been given during Vallandigham’s lifetime, he probably would have dissented. On the other hand, he would have heartily endorsed the dissenting opinion written by Justice Oliver Wendell Holmes in Abrams et al. v. United States (1918). In this case Holmes attempted to deal with a fundamental issue—the meaning of “loyalty” and “disloyalty” in a democracy. He stated that the government was justified in interfering in the realm of ideas only if the nature of the specific utterance of the ideas and the circumstances in which they were uttered were such as to give rise to a clear and present danger of overt actions which a state might legitimately forbid.20 Clement L. Vallandigham, dissenter extraordinary of Civil War days, would have applauded Justice Holmes, dissenter in the Abrams case.
Despite the fact that the Supreme Court occasionally dealt with the conflict between the principles of civil liberty and national security, it evolved no formula and never set the limits of dissent in wartime. This question, in fact, still confronts every democracy in time of war, with the practical results too often dependent upon the restraint and wisdom of the individuals in power. United States citizens, during the later stages of the Vietnam War, continued to disagree over questions of “loyalty” and “disloyalty”—whether antidraft rallies and moratorium marches were merely exercised rights or acts which gave aid and comfort to the enemy. Do these “allegedly disloyal activities” imperil the government and blunt its military objectives? In what way and to what extent? To what extent may a government restrict rights to achieve an enforced unity? These questions, essential to a definitive appraisal of Vallandigham’s role as a dissenter in the Civil War, remain unanswered a hundred years later.21
President Lincoln recognized that influential critics like Vallandigham posed a difficult problem. “Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?” he asked. He sincerely believed that Vallandigham’s statements and speeches encouraged desertion, discouraged enlistments, and hampered the war effort. “Must I shoot a simple-minded soldier boy who deserts,” he inquired, “while I must not touch a hair of a wiley [sic] agitator who induces him to desert?”22 The president evidently believed that his administration and the government were synonymous terms—that the administration was the government. He denied that there was a no-man’s land between loyalty and treason and he believed that the Dayton critic had trespassed beyond the limits of dissent.
Vallandigham, on the other hand, denied that the Lincoln administration and the government were one and the same. He claimed he was loyal to the government and the Constitution and that every effort of Republicans to confine loyalty to a single pattern, to constrain it to a single formula, was disloyalty to the Constitution and American tradition. He believed the concept of loyalty as conformity a false one and he questioned whether radical Republicans (whom he believed guilty of mockery of the Bill of Rights) had the right to impose their definition of loyalty upon the country.
But Vallandigham’s quarrel with Lincoln was more than a dispute over the meaning of loyalty and disloyalty. It was also a quarrel between the nation’s leader, who recognized coercion as the only practical means of saving the Union, and a visionary who misjudged the mood and mind of the South. Furthermore, it was a controversy between a pragmatic president who added new dimensions to the war, furthering the revolution within it, and a conservative Democrat who opposed the direction of events and chanted the slogan “The Constitution as it is, the Union as it was.” It was a controversy between a president who was flexible and who believed that a government must be a viable, dynamic organism responsive to the changing times, and an inflexible Copperhead who rejected change, opposed the wishes of the majority, and became entrapped by his own principles.
Clement L. Vallandigham always believed that time would vindicate him and posterity would adjudge him a prophet. But time vindicated Lincoln, not Vallandigham.
1 C.L.V. to “Messrs. Hubbard,” 1 March 1864, published in the Dayton Daily Empire, 12 March. Other Ohio Democratic newspapers mobbed in early 1864 included: Ottawa County Democrat (Port Clinton), Ohio Eagle (Lancaster), and the Mahoning Democratic Press.
2 Bertram W. Korn, “Congressman Clement L. Vallandigham’s Championship of the Jewish Chaplaincy in the Civil War,” American Jewish Historical Quarterly 53 (December 1963): 188-91, has high praise for the Ohio Copperhead’s efforts to eliminate discrimination against rabbis.
3 Quoted in Dayton Daily Ledger, 3 October 1866.
4 Quoted in Merle Curti and others, An American History, 2 vols. (New York, 1950), 2: 159.
5 John Spencer Bassett, A Short History of the United States (New York, 1921), p. 338.
6 S. E. Foreman, Our Republic (New York, 1924), p. 215.
7 Christopher R. Greene, An Oration Delivered in St. Michael’s Church, on Tuesday, the Fourth of July, 1815 (Charleston, 1815), p. 11, quoted in Merle Curti, Growth of American Loyalty (New York, 1946), p. 152.
8 Nahum Capen, The Republic of the United States (Boston, 1848), pp. 37-38.
9 (Columbus, 1869.) Reid treated Vallandigham as a traitor. No one during the war did more than Reid to develop “Copperhead” as a smear term.
10 Two vols. (Hartford, Conn., 1867.) This book typifies the “history” written by Republican participants.
11 Other “histories” include: Berry R. Sulgrove, History of Indianapolis and Marion County (Philadelphia, 1884); John Moses, Illinois, Statistical and Historical, 2 vols. (Chicago, 1889); Logan Esarey, History of Indiana from 1850 to the Present (Fort Wayne, 1918); and William H. H. Terrell, Report of the Adjutant General of Indiana, 8 vols. (Indianapolis, 1869).
12 Ex Parte Memyman, 17 Federal Cases 144 (1861).
13 28 Federal Cases 923 (1863). Leavitt’s decision was later published in Official Records, ser. 2, 5:575-76.
14 Ex Parte Vallandigham, 68 U.S. (1 Wallace) 243-54 (1864).
15 Detroit Free Press, 26 February 1864; Dayton Daily Empire, 16, 19 February, 1 March 1864.
16 James G. Randall, The Civil War and Reconstruction (Boston, 1937), p. 398.
17 Ex Parte Milligan, 71 U.S. (4 Wallace) 1-143 (1866).
18 Vallandigham to Marcus Mills Pomeroy, 3 January 1867, published in Dayton Daily Empire, 15 January 1867; Dayton Daily Journal, 7 May 1866; Dayton Daily Empire, 27 December 1866. The passage of a special habeas corpus bill which protected army officers from suits when they were executing orders of their military superiors, prevented Vallandigham from instituting a suit for damages against Tod and Burnside.
19 Schenck v. United States 249 U.S. 47 (1919).
20 Holmes, dissenting opinion in Abrams et al. v. United States 250 U.S. 616, 624-63 (1918-1919).
21 Those interested in the question of loyalty and disloyalty can pursue the subject further in: Arthur M. Schlesinger, Jr., “What Is Loyalty? A Difficult Question,” New York Times Magazine, 2 November 1947; Henry Steele Commager, “Who Is Loyal to America?” Harper’s Magazine 195 (September 1947): 193-99; Alan Barth, The Loyalty of Free Men (New York, 1951); and John C. Wahlke, ed., Loyalty in a Democratic State (Problems in American Civilization), (Boston, 1965).
22 Lincoln to “Hon. Erastus Corning & others,” 12 June 1863, Robert Todd Lincoln Papers, Library of Congress. The original letter has not been located. Revisions were made, evidently, before Lincoln sent the letter to Coming and released it to the press. (It was published in the New York Tribune, 15 June 1863.)