Ex Parte Vallandigham, 28 F.CAS. 874 (1863)

This case deals with the conflict between free expression and military necessity during the course of war. It represents the struggle between free speech rights and the imperiled security of the Union.

On September 24, 1862, President Lincoln issued a proclamation suspending the writ of habeas corpus and declaring martial law. In March 1863, President Lincoln appointed General Ambrose Burnside to the post of Union commander of the Department of Ohio. Thereafter, General Burnside issued General Order No. 38, which announced that ‘‘[i]t must be distinctly understood that treason, expressed or implied, will not be tolerated in this department.’’ General Burnside’s issuance of General Order No. 38 resulted in what turned out to be the Civil War’s most celebrated arrest and prosecution for disloyal speech.

In May 1863, Clement Vallandigham addressed a large meeting of citizens where he described the war as ‘‘wicked, cruel, and unnecessary;’’ characterized General Order No. 38 as a ‘‘base usurpation of arbitrary authority;’’ and contended that ‘‘the sooner the people informed the minions of the usurped power, that they will not submit to such restrictions upon their liberties, the better.’’

Based on the speech, Vallandigham was arrested and brought before a five-member military commission and charged with ‘‘[p]ublicly expressing in violation of General order No. 38 . . . 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 government in its efforts to suppress an unlawful rebellion.’’

After a two-day trial, at which Vallandigham refused to plead because he contended that the tribunal had no lawful authority over a civilian, the commission found Vallandigham guilty as charged and sentenced him to confinement ‘‘in some fortress of the United States, . . . there to be kept during the war.’’ President Lincoln commuted the sentence a few days later, and Vallandigham was banished from military lines.

Vallandigham filed a petition for writ of habeas corpus arguing that his constitutional rights had been violated, including his right to due process of law, the right to be tried on the indictment of a grand jury, the right to a public trial by an impartial jury, the right to confront witnesses against him, and the right to have compulsory process for witnesses in his behalf. Judge Humphrey H. Leavitt denied Vallandigham’s petition, basing his decision on moral grounds rather than precedent. Judge Leavitt explained that

[t]he court cannot shut its eyes to the grave fact that war exists, involving the most eminent public danger, and threatening the subversion in destruction of the constitution itself. In my judgment, when the life of the republic is in peril, he misstates his duty and obligation as a patriot who is not willing to concede to the constitution such a capacity of adaptation to circumstances as may be necessary to meet a great emergency, and save the nation from hopeless ruin. Self-preservation is a paramount law.

Addressing the specific circumstances of this case, Judge Leavitt observed that ‘‘[a]rtful men, disguising their latent treason under hollow pretensions of devotion to the Union,’’ have been ‘‘striving to disseminate their pestilent heresies among the masses of the people.’’ Judge Leavitt found that General Burnside was reasonable in perceiving ‘‘the dangerous consequences of these disloyal efforts’’ and in resolving, ‘‘if possible, to suppress them,’’ because the ‘‘evil was one of alarming magnitude.’’ Judge Leavitt concluded by stating that those who criticized the government in time of crisis ‘‘must learn that they cannot stab its vitals with impunity.’’

Ex parte Vallandigham raised basic civil libratory issues—the power of the military to try civilians and imprison or otherwise punish people for antiwar speech. Lest we not forget, without free speech, we would not have democracy.

PATRICK H. HAGGERTY

References and Further Reading

• Curtis, Michael Kent. Free Speech, ‘‘The People’s Darling Privilege’’: Struggles for Freedom of Expression in American History. Durham, NC: Duke University Press, 2000.
• Klement, Frank L. The Limits of Dissent: Clement L. Vallandigham & The Civil War. Lexington: University of Kentucky Press, 1970.
• Rehnquist, William H. All the Laws But One: Civil Liberties in Wartime. New York: Alfred A. Knopf, 1998.
• Vallandigham, James L. A Life of Clement L. Vallandigham. Baltimore: Turnbull Bros., 1872.