Hello H-CivWar Readers:
Today we feature Thomas C. Mackey to talk about his new book Opposing Lincoln: Clement L. Vallandigham, Presidential Power, and the Legal Battle over Dissent in Wartime, which came out in September 2020 with the University Press of Kansas.
Thomas Mackey is professor of history at the University of Louisville. He received his Ph.D. in U.S. Legal and Constitutional History from Rice University. He is the author of the four-volume A Documentary History of the American Civil War Era, Pornography on Trial: A Handbook With Cases, Laws, and Documents, and Red Lights Out: A Legal History of Prostitution, Disorderly Houses, and Vice Districts, 1870-1917.
How did you become interested in questions of loyalty during the Civil War and Vallandigham in particular?
TCM: This question is a two-part question so let me start with the interest in loyalty in the Civil War Era question. In graduate school at Rice University, I worked with Dr. Harold M. Hyman who did some of his early work on the issue of loyalty; more specifically, the issue of loyalty oaths in the Civil War. This interest made sense since he was writing in the 1950s when the issue burned white-hot. But, when I worked with him, the issue looked complete and done; as a result, my interest in United States Legal History took me in another direction. I spent my early career not working in the era of Lincoln, but pursuing other questions in the area of law and society studies. I drifted back to the Civil War as an active area of study because I served on one of the boards during Abraham Lincoln Bicentennial and started reading and working in the field again with new eyes, new questions. Internal security constitutes one of the constant themes in United States History and witnessing the world in the early twentieth century meant that the challenging issue of internal arose again and so did my interest in the topic.
Through my work with the United States History examination of the Advanced Placement program of the Educational Testing Service and the College Board, I worked with a large number of talented high school teachers, junior college teachers, and other historians who expressed a need to me for easier access to full-text primary materials in United States Legal/Constitutional History from the middle period of the Nineteenth Century. As a result, I put together, wrote the headnotes, and from 2012-2014 the University of Tennessee Press published my four volume Documentary History of the American Civil War Era. The final two volumes focused on judicial decisions from the era and during that reading and research I re-read, back-to-back, Ex parte Vallandigham (1864) and Ex parte Milligan (1866). While I thought I knew and understood the case law and the doctrinal holdings, a discordant disconnect struck me between the decisions. While both dealt with the issue of internal security, loyalty, and disloyalty in wartime, Clement L. Vallandigham’s case and United States Supreme Court’s decision on his habeas corpus request struck me as more important than I had known while the much better know (even celebrated) decision dealing Lambdin P. Milligan struck me as less persuasive and plausible. That inconsistency led me to start re-reading and re-considering the secondary literature on Vallandigham and issue of the limits of dissent in wartime -- long before the rise of the civil liberties consciousness culture of the twentieth century. That reading put me back in touch with the arguments of Frank L. Klement, Jennifer L. Weber, William A. Blair, and William C. Harris. In 2015, Stephen E. Towne published his book, Surveillance and Spies in the Civil War: Exposing Confederate Conspiracies in America’s Heartland. From his long, deep, and impressive reading in the primary sources, it is clear that extremist Copperhead disloyalty existed and that they constituted more of an immediate and actual threat; they envisioned creating a “Northwest Confederacy” that would split the Union and force a mediated peace and separation of not only the South but perhaps the greater Midwest as well. Without access to the sources discovered by Towne, earlier scholars had either downplayed the threat of the Copperhead opposition or dismissed it. Lincoln knew about what he called “fire in the rear,” but left the issue up to the military commanders in their departments to oversee and take care of the potential problem of large spread disloyalty. Thus, when General Ambrose Burnside arrested Vallandigham – who was the eye and principle leader of the disloyal hurricane – his well-meaning, but heavy-handed actions set off a chain of actions and political decisions, and, in time, judicial decisions, that provide a window into the issue of the limits of dissent in wartime in a political democracy. This bundle of sticks needed another examination and I launched in. After initially working with one Press, a shift occurred to the University Press of Kansas for their “Landmark Law Cases and American Society” series, and I am delighted to contribute to this important series.
What is the argument of your book?
TCM: This work argues that “Lincoln pursued a reasonable (though never perfect) policy regarding loyalty and disloyalty and he did so within an adequate constitutional system,” and he did so in wartime. Vallandigham’s opposition to Lincoln and his administration’s public policies led to his prosecution and conviction by military commission which, in turn, “raised troubling issues for any loyal American – then and since – on the tough problem, on the delicate balance, of dissent in wartime in a political democracy.” Contrary to common perception, the law is not silent during war; but, the law does take different tracks, follows different rules and doctrines, in wartime versus peacetime. As a result, as I argue, “this narrative of dissent in wartime and the use of valid governmental power to defend established legitimate government is a continuing challenge—an evergreen question—in US legal and political and constitutional history.” No “bright line” rules existed in Lincoln’s era (nor in the modern day) to know what behavior was or is valid and loyal and when that line is crossed into invalid and disloyal speech and action. The contingency of the ideas expressed by the federal courts deciding Vallandigham’s request for a habeas corpus and Lincoln’s own June 12, 1863 “Corning Letter” make clear just how difficult the issue of loyalty and disloyalty can be for a political democracy at war then -- and now.
Before we go any further, could you give a brief synopsis of the Vallandigham incident/case?
TCM: In May 1863, Vallandigham delivered an anti-Lincoln and anti-Lincoln administration speech in Ohio. The military commander of the area, General Ambrose Burnside, had issued General Orders No. 38 that prevented a variety of disloyal activities including speech that undermined the military or the federal draft. Burnside sent plain-clothes officers to the Vallandigham’s speech to take notes on what the noted Copperhead said at the speech. In response, Burnside arrested Vallandigham and had him tried by military commission. Vallandigham saw an opportunity to embarrass the Lincoln administration because of his military arrest and trial in an area where the civilian courts were open and Vallandigham used his arrest as an opportunity to present himself as a martyr to an oppressive and out-of-control president and administration.
No surprise, the military commission found Vallandigham guilty and sentenced him to imprisonment for the duration of the war; Burnside approved the sentence. But, before Vallandigham could be moved to prison and because of the political outcry by loyal Democrats and Republicans, President Lincoln intervened and changed Vallandigham’s sentence to banishment to the Confederacy. Once banished, Vallandigham made his way to the east coast, took a blockade runner, first to Bermuda, and then on to Canada settling in Windsor, Canada just across from Detroit all the time watched and monitored by federal officers. Vallandigham had become the man without a country. At the same time, Vallandigham’s attorneys had been hard at work appealing his conviction. They asked for a habeas corpus first to the federal circuit court. The federal circuit court accepted full briefs on all of the associated legal questions such as the issue of the suspension of habeas corpus and the military trial of civilians in wartime. Denied habeas corpus by the federal circuit court, Vallandigham’s lawyers then appealed to the United States Supreme Court which handed down its decision in 1864 of Ex parte Vallandigham. While the war raged, the Supreme Court found that it lacked jurisdiction in the issue thus denying Vallandigham’s request for habeas corpus. Contrast, this decision – decided this time in peacetime – against the 1866 decision in Ex parte Milligan which arose from a nearly similar fact-pattern. In Milligan, the Supreme Court claimed unanimously that the military trial of civilians was unconstitutional and that the Constitution operated in wartime and peacetime. While later generations have hailed Milligan as a statement of freedom from arbitrary governmental action in wartime, the reality of wartime does not allow such legal niceties. In the meantime, Vallandigham returned to Ohio and ran for the governorship of Ohio on an anti-Lincoln platform; he lost badly in the 1864 elections. Vallandigham’s speech, Burnside’s arrest and trial of him, and the judicial statements on these actions from the federal circuit court and the United States Supreme Court raise and probe the issues of the limits of political speech in wartime in a political democracy.