We Don’t Need No Stinkin’ Habeas Corpus!
1861–1865: The Union States
Paul A. Thomsen
Throughout the war, Abraham Lincoln struggled daily to both hold the North together and compel the surrender of the South. Although the South had coalesced into a Confederate force his military could fight, the Union was a bitterly factionalized populace. His policies were questioned by his own party and ignored by many of his generals. Governmental actions were daily criticized by a growing dissident movement of northern Confederate sympathizers known as Copperheads. None were more contentious than Lincoln’s subversion of the Constitution to selectively militarily detain, try, and sometimes execute civilians deemed an imminent danger to a country at war. In fact, the efforts would have been unconscionable in peacetime. Still, in his wildest imagination Lincoln never considered that one of his own generals, Ambrose Burnside, would plunge the president into one of the biggest domestic policy blunders of the Civil War by imprisoning the North’s leading Peace Democrat, Clement Vallandigham.
Although the North had an industrial capacity far in excess of the South, the Union consistently suffered from a deficit of capable and willing field commanders. Winfield Scott, pushing seventy-five at the start of the war, was well past his prime to lead men into battle. At the Battle of First Bull Run, Irvin McDowell proved his gross inexperience in being routed by an inferior number of enemy troops. Similarly, George B. McClellan, an able Union trainer, also later proved to be a poor strategist and a fear-driven battle commander. At one point, the president suggested he could outperform his generals with an army in the field under his own command. Try as he might, Lincoln, however, could not find a general worthy of the rank.
With the Confederate forces making daily advances with far less men and supplies, Lincoln was forced to contend with what he had on hand and hope for the best. In November 1862, Abraham Lincoln replaced McClellan with a man he hoped could fight, Ambrose Burnside. Burnside, however, was by no means a strategic thinker or a consummate warrior. In fact, he wasn’t even much of a financial manager. Upon graduating from West Point in 1847, Burnside left the army and promptly fell on hard times. By the onset of the Civil War, Burnside had narrowly managed to dig himself out of financial ruin by working long hours for the Illinois Central Railroad. Sadly, his battlefield career was, likewise, unremarkable. In 1861, for example, Burnside had been one of the routed brigade commanders at Bull Run. Worse, at Antietam in 1862, Burnside also dubiously chose to funnel his men across a stone bridge into withering enemy fire rather than ford the shallow nearby creek little guarded by the enemy. Worse still, his ordered attack repeatedly delayed the Federal advance, gave the Confederates room to escape, and caused the loss of approximately 500 Union soldiers in the single engagement.
Although the president hoped Burnside would at least be more willing to fight than McClellan, Lincoln’s hopes in his new commander of the Army of the Potomac rapidly disintegrated. In December, Burnside executed an ill-conceived uphill, winter battle against entrenched Confederate positions at Fredericksburg, Virginia. According to the United States Army Center of Military History, in just this one engagement, Burnside lost 1,284 dead, 9,600 wounded, and 1,769 missing men. Lincoln was apoplectic. While McClellan had been slow to attack, Burnside’s continued poor battle planning would soon drain the Union Army dry. With little choice, in January 1863 Lincoln was forced to relieve Ambrose Burnside of command and send him to the rear of the army, where, Lincoln believed, the failed commander would stay out of trouble.
Oh boy, was the president ever mistaken. . .
Instead of being neutralized by the transfer off the front lines, General Burnside’s new command created an even greater problem for the president. In March 1863, Burnside was assigned command of the Department of the Ohio and tasked with rebuilding the army’s regional presence. He was supposed to quietly reorganize the army’s reserve elements. He also should have defended the region from enemy privation, waited for more competent commanders to break the enemy, and wired Washington for instructions should something unforeseen arrive. Instead, when Peace Democrat Clement Vallandigham, a former congressman and southern sympathizer, made appearances at rallies in Ohio against the war, Ambrose Burnside decided to settle the matter himself.
Over the course of the war, Abraham Lincoln had shown certain deftness in handling matters of civil liberties, but Burnside was not a subtle man. First, the general revised Lincoln’s early war habeas corpus and military trials policies, including the charge that treason could be considered “expressed or implied” in his Ohio military command. Next, he ordered the creation of a military tribunal panel to enforce the previous order. Finally, when Vallandigham next spoke out against the war in Ohio, on May 5, 1863, Burnside’s men swept in, arrested the man on charges of treason, and sent him before a five-man military tribunal. Given Burnside’s new orders and the purview of field commanders during the war, the jury speedily convicted Vallandigham and he was sentenced to imprisonment for the duration of the war.
When the president learned of the incident, he was apoplectic. Not only had Burnside exceeded his authority and made a martyr of a minor political nuisance, but in prosecuting Vallandigham, the Ohio commander also threatened to upend a delicate legal matter vital to national security. Over the past several years, the president and his staff had taken great pains to negotiate a precarious balance between the issue of freedom of speech in wartime and military necessity. Although Lincoln had suspended the writ of habeas corpus (required by arrestees when someone is charged with a crime) and had installed military courts, the president had intended the measures to remain limited and administration control to protect domestic security interests. For example, in April 1861, the army moved troops from the North to defend Washington City against a potential Confederate invasion. The transfer, however, had been hampered by violence in Maryland, through which the rail lines ran. Some transiting troops were pelted with bricks and threatened by mobs. In another instance, eyewitnesses reported that Maryland militiaman John Merriman and a contingent of armed men forced a group of Union soldiers back across a Baltimore bridge at gunpoint and then set fire to the structure. The subject threatened not only to plunge the state into chaos, but also to drive Washington’s northern neighbor into the waiting arms of the Confederacy.
With the security of Washington at stake, the Lincoln administration had been forced to take desperate measures. On the night of April 27, 1861, Federal soldiers kicked in the doors of several Maryland homes and dragged John Merriman and others out of their beds. They were then identified as national security threats and hauled off to military bases, where they were to be imprisoned indefinitely.
“If at any point or in the vicinity of the military line,” wrote Lincoln on April 27, 1861, to commanding General of the Army Winfield Scott, “ . . . you find resistance which renders it necessary to suspend the writ of Habeas Corpus for the public safety, you . . . are authorized to suspend that writ.”
Yet Burnside’s arrest of Clement Vallandigham was not of military necessity, had no such national security stricture, and, worse, severely undermined the Lincoln administration’s public standing. During the trial, Vallandigham had refused to enter a plea, claiming his imprisonment was unlawful and the trial a mockery of justice. The trial itself also generated considerable negative press for the Lincoln administration in Ohio and across the nation. Furthermore, upon conviction, Vallandigham petitioned the Supreme Court to intercede on his behalf, generating still more bad press for Lincoln. Worse still, when the petition was denied, the court invoked District Judge Humphrey H. Leavitt’s ruling, saying “the court cannot shut its eyes to the grave fact that war exists. . . . Self-preservation is a paramount law.” Finally, and most unfortunately for Lincoln, the Supreme Court’s refusal left the president as the only man capable of ending the farce and indirectly nullified the validity of his past national security measures.
The incident could not have come at a worse time. Due to the trial, Union public support for the war was once again waning. The economy likewise was faltering. The body count for each engagement continued to climb steadily higher. Consequently, more northerners were flocking to pro-southern organizations. Some scholars, such as David Stephen Heidler, Jeanne T. Heidler, and David J. Coles in the Encyclopedia of the American Civil War, even estimate that pro-southern elements in the North grew from approximately 200,000 members to as many as 300,000 members during this period. Furthermore, Lincoln had recently been forced to replace Burnside’s Potomac Army replacement, Joe Hooker, with another officer, Gordon Meade, for failing to perform adequately. As a result, one could have misconstrued that Burnside was really fighting for the other side.
Rather than let the problem grow as Vallandigham played the role of martyr for the southern cause, Lincoln rapidly moved to correct Burnside’s mistakes. In a short time, the president quietly commuted Vallandigham’s sentence to banishment from the Union to the Confederacy, and ordered the man escorted to the limits of Union territory and released into the Confederacy. There the Peace Democrat’s pleas were rendered moot. With the double threat of Vallandigham now effectively neutralized, the president finally turned to the architect of the Union’s great public relations mistake. Through the War Department, Lincoln directed Burnside to limit his remaining time in Ohio to attacking raiders and supporting Union operations in Tennessee. Now much chagrined, Burnside did what he should have done months before: he followed the orders of his superiors, kept his mouth shut, and contributed to the fall of the Confederacy in the West.
For a man whose major claim to fame remains popularizing sideburns, Ambrose Burnside’s prosecution of Vallandigham did some serious damage to the credibility of the North. Coupled with Robert E. Lee’s menacing thrust into Pennsylvania, Vallandigham’s headlining presence won a sea of supporters for the Confederacy. It also emphasized the heavy-handedness of Federal governance and stoked the spiritual fires of dissent against Lincoln, which ignited in the anticonscription riots of the summer of 1863. Burnside’s vendetta against Clement Vallandigham also had an enduring negative impact on Lincoln’s own reputation. Whereas other Civil War civil liberties cases involving military arrests of civilians (most notably, Ex Parte Merriman and Ex Parte Milligan) have painted the nineteenth-century president of the United States as a savvy lawyer who knew the limits of his abilities, the poorly handled Vallandigham case paints Lincoln as both a dupe for allowing Burnside to act as well as a hypocrite for pardoning a man his own system validated as dangerous. Above all, the case also serves as a palpable reminder of the boundlessness of alleged wartime necessity and national security.