McGinty Brian. Lincoln and the Court

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Field received word of his appointment by telegraph; using the same

means, he asked for permission to postpone the beginning of his service until

May 20, which would be his father’s birthday (the patriarch of the Field clan

was about to turn eighty-two).

In addition to honoring his father, Field

wanted to ﬁnish some pending state supreme court cases. On the appointed

day, he took his oath of ofﬁce in San Francisco as a justice of the United States

Supreme Court.

During the summer he heard cases in the federal circuit

court, and in the fall he boarded a steamboat for the long journey from Califor-

nia to Washington, via Panama and New York. It was an arduous trip but one

that Field would get used to in the years ahead, for however important his vote

was on cases that had to be decided in Washington, his circuit duties on the

Paciﬁc Coast would occupy most of his time and energy during his many years

of service on the Supreme Court. On Monday, December 7, 1863, the judges of

the high tribunal gathered in Washington for the opening of their new term.

With the addition of Justice Field, ten justices were present.

Many years later, Field reminisced about his early days in Washington and

the war atmosphere that pervaded the city when he arrived there in 1863. The

mood of war penetrated even into the chambers of the Supreme Court: “When

I came here the country was in the midst of war. Washington was one great

camp, and now and then the boom of cannon could be heard from the other

side of the Potomac. But we could not say inter arma silent leges [“in war the

laws are silent”]. This court met in regular session, never once failing in time or

place, and its work went on as though there were no sound of battle.”

field had been in Washington only six weeks when the Supreme Court

convened to hear arguments in one of the most important—and potentially

explosive—cases of the war. It was Friday, January 22, 1864, and Justice Wayne

was presiding in the absence of Chief Justice Taney, who was again too ill to

come to the Capitol. The case was Ex parte Vallandigham, and it came before

the Court on petition for a writ of certiorari to the judge advocate general of

the army, Joseph Holt of Kentucky. Holt was a Democrat who had served Presi-

dent Buchanan as postmaster general and secretary of war before Lincoln

appointed him to his army post in September 1862. Despite his political differ-

ences with the president, Holt was a Union loyalist and an accomplished

lawyer—in fact, his legal abilities were so widely admired that he had been

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mentioned by both Democrats and Republicans as a potential Supreme Court

nominee. Holt was on hand on January 22 to argue the government’s case

in Ex parte Vallandigham. The case for the petitioner, Clement Laird

Vallandigham of Ohio, was argued by George E. Pugh. Both Pugh and

Vallandigham were prominent Democratic politicians in Ohio and vocal crit-

ics of Lincoln’s war policies. Pugh had been his state’s attorney general from

1852 to 1854 and a United States senator from 1855 to 1861 (he lost his bid

for reelection to Salmon P. Chase, soon to become Lincoln’s treasury secre-

tary). Vallandigham was perhaps the North’s loudest and most determined

critic of the president’s war policies—and it was the very loudness and dogged

determination of his criticism that had led to his legal difﬁculties.

Vallandigham was a conservative Democrat who defended the interests of

yeoman farmers and low-wage laborers against the expanding interests of urban

merchants, manufacturers, and ﬁnanciers. He opposed the war because he be-

lieved in the “absolute sovereignty of the states,” and he resisted emancipation

because he believed that blacks were inferior to whites.

Like Roger Taney, he

argued that the beneﬁts of citizenship could never be extended to the Negro,

not just because of his “descent from slaves” but “because he is the descendant

of a servile and degraded race.”

He sensed that a Northern victory in the war

would effect a profound transformation in the political, social, and economic

life of the nation, changing it from a loosely knit league of rural communities

into a commercial and industrial nation committed to expanding concepts of

political and social equality. He sought to summarize his position on the war

with the slogan: “The Constitution as it is, the Union as it was.” But one of his

followers added a revealing phrase to the rallying cry: “The Constitution as it

is, the Union as it was, and the Niggers where they are.”

Vallandigham’s views were not shared by most Northerners—not even by

most Northern Democrats, who supported the war (with varying degrees of en-

thusiasm) and identiﬁed themselves as War Democrats. But they did accurately

reﬂect the opinions of the antiwar wing of his party, generally called the Peace

Democrats, although Republicans called them “Copperheads,” in allusion to

the poisonous snakes of the same name.

The strength of the Copperhead movement during the Civil War has been

the subject of sharp disagreement among historians. For more than a genera-

tion, the late Frank L. Klement of Marquette University argued that the Cop-

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perhead threat was largely illusory, a kind of “fairy tale” threat that was the

subject of wild exaggeration by Unionists, especially Republicans.

A more re-

cent study by Jennifer L. Weber of the University of Kansas indicates that

Copperheadism was in fact strong throughout the conﬂict, although the num-

ber of its sympathizers varied, rising and falling in inverse relation to the

Union’s military fortunes. When the North prevailed on the battleﬁeld, Cop-

perhead sympathies waned, but when the war effort stalled, or was in danger

of failure, the number and inﬂuence of the Copperheads swelled.

The move-

ment was a real threat to the war effort, Weber says, and was recognized as such

by Lincoln, who told Massachusetts senator Charles Sumner that he feared a

“ﬁre in the rear” (meaning the antiwar Democrats) more than he feared the

Union’s military chances.

Throughout the conﬂict, Clement Vallandigham

was the most articulate and vociferous spokesman for the antiwar movement

in the North. Weber has called him “the most notorious Copperhead in the

nation.”

Born in New Lisbon, Ohio, in 1820, to parents with Southern roots,

Vallandigham was a talented lawyer and an ambitious politician. Originally a

Jacksonian, he had strongly defended President Polk’s prosecution of the war

with Mexico in the mid-1840s (a fact that caused him some embarrassment af-

ter he took his aggressive antiwar stance in the 1860s). After moving to

Dayton, he published a newspaper for a couple of years and then resumed his

law practice. A handsome man and a spellbinding speaker, he won a tough

contest for election to the U.S. House of Representatives in 1858. Originally a

supporter of Stephen Douglas’s doctrine of “popular sovereignty,” he broke

with the Little Giant after the Confederate attack on Fort Sumter, opposing

Lincoln’s war policies (which Douglas supported) and arguing against all mili-

tary measures designed to resist secession.

Vallandigham opposed Lincoln’s call for militiamen in 1861; he opposed

the president’s proclamation of a blockade; he opposed the issuance of legal-

tender notes (“greenbacks”) to ﬁnance the war; and he opposed the conscrip-

tion laws passed by Congress in 1862 and 1863, arguing that they proved that

the people of the North did not support the war. He condemned the idea of

emancipation, labeling calls for an end to slavery as “mingled fanaticism and

hypocrisy.” “I see more of barbarism and sin,” he said, “a thousand times, in the

continuance of this war, the dissolution of the Union, the breaking up of this

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government, and the enslavement of the white race, by debt and taxes and ar-

bitrary power.” After the ﬁnal Emancipation Proclamation was issued on Janu-

ary 1, 1863, he denounced it on the ﬂoor of the House of Representatives, ar-

guing that “if this Union cannot endure ‘part slave and part free,’ then it is

already and ﬁnally dissolved.”

He excoriated arbitrary arrests in the North,

condemning Lincoln as a despot and suggesting that, if he continued to behave

as he had, he should be impeached.

Eager to take to the platform wherever he

could ﬁnd a large audience, he traveled to New York to vent his antiwar views,

then returned to Ohio where, in the election of 1862, he lost his seat in Con-

gress. Undeterred, he announced his candidacy for governor of Ohio.

Vallandigham’s new campaign met a stumbling block in the spring of

1863, when Lincoln ordered Major General Ambrose Burnside to take com-

mand of the military’s Department of the Ohio, headquartered in Cincinnati.

Burnside had been removed from his command of the Army of the Potomac

because of the irresolution he had displayed at the Battle of Fredericksburg the

previous December. In his new department (which included Illinois, Indiana,

Michigan, Wisconsin, and part of Kentucky as well as Ohio) Burnside encoun-

tered widespread and often intemperate agitation against the war, and on April

13, 1863, he issued a military order (General Orders, No. 38) designed to sup-

press the agitation. It declared that “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.” It also provided that the “habit

of declaring sympathy for the enemy will not be allowed in this department.

Persons committing such offenses 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.”

When Vallandigham learned about Burnside’s order, he openly ridiculed

it. It was “a base usurpation of military power,” he said; he could “spit upon it

and stamp it under foot,” as his right to criticize the government was based

upon “General Orders, No. 1,” the Constitution of the United States. “The

sooner the people inform the minions of usurped power that they will not sub-

mit to such restrictions upon their liberties,” he insisted, “the better.” Mean-

while, Burnside learned that Vallandigham was planning to speak at a large

outdoor rally in Mount Vernon, Ohio, on May 1. Suspecting that he intended

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to make more inﬂammatory statements, Burnside sent two members of his staff

and ten citizens of Cincinnati to “observe” the speech and take notes on what

was said. According to Frank Klement’s biography of Vallandigham, the for-

mer congressman learned in advance that Burnside’s men would be in Mount

Vernon and, “needing martyrdom to gain his goals, intended to make the most

of his opportunity.”

Speaking provocatively and ﬂamboyantly, he delivered a

nearly two-hour-long tirade against Lincoln and the Republicans that won him

wild applause from the crowd and a secure, if controversial, place in the history

of the Civil War.

Back in Cincinnati, Burnside’s men reported that Vallandigham had ad-

dressed an audience of some 20,000 at Mount Vernon; and that he had ex-

pressed virulent antiwar sentiments, declaring the war “a wicked, cruel, and

unnecessary war;...awarnotbeing waged for the preservation of the Union;

...awarforthepurpose of crushing out liberty and erecting a despotism;...a

war for the freedom of the blacks and the enslavement of the whites” and

charging “that the Government of the United States was about to appoint mil-

itary marshals in every district, to restrain the people of their liberties, to de-

prive them of their rights and privileges.”

On orders from Burnside, Vallandigham was arrested in his home early on

the morning of May 5 and taken before a military commission in Cincinnati.

There he was charged with “publicly expressing...sympathy for those in arms

against the government of the United States, and declaring disloyal sentiments

and opinions with the object and purpose of weakening the power of the gov-

ernment in its efforts to suppress an unlawful rebellion.”

From the outset, Vallandigham denied the jurisdiction of the military

commission to try him. He pointed out that he was not a member of the mili-

tary and argued that he was not subject to military law. If it was charged that

he had committed any crime, he said, he was entitled to be tried in a civil

court according to due process of law. In any event, citizens had the right to

criticize public policy and public servants. And he avowed that “he had never

counseled disobedience to the Constitution, or resistance to laws and lawful

authority.”

Vallandigham’s argument did not persuade the military commissioners

who tried him. They found him guilty and sentenced him to imprisonment for

the duration of the war. Two days later, ex-Senator Pugh appeared before Judge

Humphrey Leavitt of the U.S. circuit court in Cincinnati and petitioned for a

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writ of habeas corpus on behalf of Vallandigham. Burnside responded by in-

forming the judge that he had authority from the president of the United

States to arrest and try Vallandigham. Pugh argued that Vallandigham was en-

titled to his release on habeas corpus because military commissions have no ju-

risdiction over civilians; under the Constitution, he said, civil rights are “not

subject to the whim of military men.” Leavitt conducted a full hearing and

concluded that he had no authority to review a decision of a military commis-

sion. Vallandigham’s petition was denied.

Vallandigham’s arrest and trial were extensively covered in newspapers all

over the country. Supporters of the Northern war effort generally applauded

Burnside’s action, although Vallandigham’s supporters, and virtually all of the

Copperheads of the North, saw it as a vicious attack on civil liberty. His arrest

and conviction were, in their view, “a great blunder” and “the most atrocious

outrage ever perpetrated in any civilized land.” A headline in Vallandigham’s

hometown newspaper condemned his arrest as “A Dastardly Outrage!!!” and

protested that “The Hour for Action Has Arrived.”

Lincoln had no prior knowledge of Vallandigham’s arrest and had not au-

thorized it.

He had, however, created a climate in which arrests such as this

could take place, for on September 24, 1862, he had issued a proclamation stat-

ing that “all persons discouraging volunteer enlistments, resisting militia drafts,

or guilty of any disloyal practice, affording aid and comfort to Rebels...shall

be subject to martial law and liable to trial and punishment by Courts Martial

or Military Commission.” In the same proclamation, he had ordered the sus-

pension of the writ of habeas corpus “in respect to all persons arrested, or who

are now, or hereafter during the rebellion shall be, imprisoned in any fort,

camp, arsenal, military prison, or other place of conﬁnement by any military

authority or by the sentence of any Court Martial or Military Commission.”

The proclamation was intended to restrain “disloyal persons” from interfer-

ing with the draft and “giving aid and comfort in various ways to the insurrec-

tion.”

Burnside might well have thought that his General Orders, No. 38,

fell within its terms. But the general did not report the order to his superiors

or seek their permission before ordering Vallandigham’s arrest, and the arrest

itself was a major embarrassment to the president. Public clamor about

Vallandigham’s case made it inevitable that Lincoln would be asked to look

into the matter.

Knowing only what he had read about the case, the president telegraphed

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Burnside to ask if the newspaper stories were correct, while at the same time

assuring him that he would support his efforts to maintain law and order.

Burnside’s reply was vague; he thanked the president for his “kind assurance of

support” but gave him no details of Vallandigham’s case.

On May 18, Major

General U.S. Grant began his siege of Vicksburg, Mississippi, defended by a

Confederate army under Major General John C. Pemberton. Lincoln was con-

cerned with news of Vicksburg when, the following day, he discussed the

Vallandigham case with his cabinet. As Gideon Welles noted in his diary, the

cabinet generally agreed that the arrest was “arbitrary and injudicious” and

an infringement on “the constitutional rights of the parties.” Every member,

Welles said, “regrets what has been done.” But the cabinet did not want to re-

buke Burnside or undermine conﬁdence in his authority, and they sought a way

out of the dilemma. Burnside’s order had provided that persons could be pun-

ished by death, imprisonment, or being “sent beyond our lines into the lines of

their friends.” Lincoln and his cabinet picked up on the last option. Accord-

ingly, Secretary of War Stanton, acting pursuant to Lincoln’s direction, ordered

that Vallandigham be sent under secure guard to the headquarters of General

W. S. Rosecrans in Tennessee and thence turned over to Confederate authori-

ties. If he should return and be arrested, he was to be “kept in close custody for

the term speciﬁed in his sentence” (that is, the duration of the war).

Vallandigham was delivered into the custody of Confederate general Braxton

Bragg on May 26. He was treated well by his Confederate hosts, but he was not

happy in the Land of Dixie. He was a candidate for political ofﬁce in the North

and wanted to resume his campaign there. So he made his way to Wilmington,

North Carolina, where he boarded a ship bound for Bermuda. From there he

was carried by another ship to Canada, and he eventually came to rest in

Windsor, Ontario, just across the river from Detroit and less than ﬁfty miles

from the northern border of Ohio. In Canada, Vallandigham resumed his cam-

paign for the Ohio governorship (his running mate as Democratic candidate

for lieutenant governor was his attorney George Pugh). He wrote letters, met

supporters, and conferred with Democratic strategists—but to no avail. When

the votes were counted in October, Vallandigham’s Union Party opponent,

John Brough, won by an unprecedented majority.

In the meantime, Pugh had taken Vallandigham’s case to the United

States Supreme Court on a petition for a writ of certiorari. Certiorari is an ex-

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traordinary writ issued by an appellate court to a lower court, commanding it to

certify its record in a particular case for review. It is issued at the discretion of

the appellate court to examine and pass on the validity of the lower court’s

judgment when appeal is not a matter of right.

In the Vallandigham case,

Judge Leavitt’s decision could not be appealed directly to the Supreme Court

because he had issued it alone, without the participation of the circuit judge,

and appeal was available only when both the district judge and the circuit

judge had heard the case together and issued a certiﬁcate of division. (Justice

Noah Swayne was the circuit judge for Ohio at the time of Vallandigham’s ar-

rest, but he was either unavailable to participate in the hearing or intentionally

chose to absent himself.) Even if it were procedurally possible, a direct appeal

might not have suited Vallandigham’s purpose, for Leavitt had passed only on

the legality of the Ohioan’s detention. A review on certiorari, in contrast,

would permit the Supreme Court to examine the legality of all of the proceed-

ings against Vallandigham—his arrest, trial, sentence, and exile.

Pugh argued that the military commission that tried Vallandigham was a

court, at least for purposes of review by the Supreme Court, and that the writ of

certiorari was the proper device for bringing it before the Court. For the gov-

ernment, Judge Advocate General Holt argued that the Supreme Court had no

jurisdiction to review the proceedings of a military commission, either by cer-

tiorari or habeas corpus. Courts-martial and military commissions derived their

authority from the president under Article II of the Constitution, Holt pointed

out, while the Supreme Court had authority under Article III of the Constitu-

tion. These two sources of authority were separate and distinct. Holt quoted

from Chief Justice Taney’s opinion in Luther v. Borden, which had broadly jus-

tiﬁed the exercise of military power in time of insurrection.

Justice Wayne announced the Court’s decision on February 15, 1864. He

reviewed the constitutional and statutory provisions delineating the Supreme

Court’s jurisdiction and concluded that the Supreme Court had no jurisdic-

tion over military tribunals. A military commission was not a “court” for pur-

poses of the Supreme Court’s jurisdiction, Wayne said, and thus the legality of

Vallandigham’s arrest, trial, and conviction were all beyond the purview of the

Court. Vallandigham was not entitled to a writ of certiorari, and Pugh’s peti-

tion was denied.

Justices Nelson, Grier, and Field concurred in Wayne’s opin-

ion. The ofﬁcial reports noted that Justice Miller was not present at the argu-

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ment and took no part in the decision. Only ﬁve justices were noted in the

reports.

What of the other ﬁve? We know that Taney was ill, and Catron

probably was too. But what of Justice Clifford, the doughface Democrat? And

what of Lincoln’s appointees, Justices Swayne and Davis? Perhaps they agreed

with Wayne’s decision and simply did not register their votes in the reports.

Perhaps they agreed, but tepidly; or perhaps they disagreed, but not so strongly

that they wished to ﬁle dissents. With only four justices registering their votes

in the ofﬁcial reports, it was a somewhat puzzling decision but a decision none-

theless, and one that sustained Lincoln’s conduct of the war, albeit in a round-

about way.

Thus, with a short jurisdictional discussion (“legal jargon,” historian Frank

Klement called it), the Supreme Court avoided the necessity of passing on the

substantive questions raised by Vallandigham’s case.

Did Vallandigham have

a right under the Constitution to criticize the president during a time of civil

insurrection? Did his arrest deny his rights of free speech? Was he, as a civilian,

properly subject to military arrest and trial? Was the whole Vallandigham case

a denial of basic constitutional rights? An example of the kind of tyranny and

despotism that Vallandigham himself had so often condemned? The Supreme

Court did not answer these questions, either because it could not do so—or did

not choose to do so. If it had provided answers, the answers would almost cer-

tainly have been damaging to the president and his conduct of the war. They

would have subjected the national government to condemnation, inevitably

weakening the president’s authority. If the Court had addressed all of these

issues, it might have struck a blow for civil liberties but also undermined

the government’s war efforts. Perhaps, in the end, the Court avoided the is-

sues it could have decided because it wanted to support the government of

which it was a part, oppose the secession, and help the president bring the war

to an end.

Lincoln was uneasy about the Vallandigham case, despite his Supreme

Court “victory.” He knew that Burnside had overstepped his bounds—and said

as much in his discussion with the cabinet. When Burnside went a step further

and used his General Orders, No. 38, to shut down the Chicago Times, a news-

paper that was aggressively antagonistic to Lincoln and the Northern war ef-

fort, the president decided to intervene. He told Secretary of War Stanton to

revoke Burnside’s order and permit the newspaper to resume publication.

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The president was still troubled by the issue of civil liberties when a group

of Democrats meeting in Albany, New York, passed a set of resolutions con-

demning his approval of military arrests and charging him with trampling on

the Constitution. He had been thinking for some time about constitutional

rights in wartime and decided to take advantage of the opportunity presented

by the Albany resolutions to put his thoughts down on paper. He addressed a

long letter to Erastus Corning, chairman of the Albany meeting, and released it

on June 12 to the New York Tribune. In the letter (commonly known as the

“Corning letter”), he explicitly rejected the notion that the Constitution did

not apply in time of rebellion or insurrection. On the contrary, he argued, it

contained provisions speciﬁcally designed to meet the present crisis. He wrote:

Ours is a case of Rebellion—so called by the resolutions before me—

in fact a clear, ﬂagrant and gigantic case of Rebellion; and the provi-

sion of the Constitution that “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,” is the provision which spe-

cially applies to our present case. This provision plainly attests the un-

derstanding of those who made the Constitution, that ordinary Courts

of justice are inadequate to “Cases of Rebellion”—attests their pur-

pose that, in such cases, men may be held in custody whom the

Courts, acting on ordinary rules, would discharge. Habeas Corpus does

not discharge men who are proved to be guilty of deﬁned crime; and

its suspension is allowed by the Constitution on purpose that men

may be arrested and held, who can not be proved to be guilty of de-

ﬁned crime, “when in cases of Rebellion or invasion, the public safety

may require it.” This is precisely our present case, a case of Rebellion,

wherein the public safety does require the suspension.

Lincoln speciﬁcally denied that Clement Vallandigham had been arrested

merely because he criticized the administration: “If this assertion is the truth

and the whole truth—if there was no other reason for the arrest, then I con-

cede that the arrest was wrong.” But Vallandigham had been laboring, “with

some effect,” to interfere with the raising of troops, to encourage desertions,

and thus to impair the government’s ability to suppress the rebellion. “He was

not arrested because he was damaging the political prospects of the administra-

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