Even some Republicans condemned what they called Burnside’s “blunder” and “great mistake.”228 A strong supporter of the Lincoln administration, former Wisconsin Governor Nathaniel P. Tallmadge, warned of “civil war in the loyal states” if Vallandigham were not released.229 Harper’s Weekly observed correctly that Vallandigham had been “fast talking himself into the deepest political grave ever dug when Burnside resurrected him.”230
Upon Vallandigham’s arrival in Cincinnati, where he was incarcerated, he issued an address to his fellow Buckeyes: “I am here in a military bastille for no other offence than my political opinions, and the defence of them, and of the rights of the people, and of your constitutional liberties.”231 The Democrats of Ohio responded by unanimously nominating him for governor. In federal court, when Vallandigham’s attorney asked for a writ of habeas corpus, Burnside emphatically defended his action, arguing that it was his duty “to stop license and intemperate discussion which tend to weaken the authority of the Government and army.”232 Upholding the power of the president and his subordinates to arrest Vallandigham, the court refused to issue the desired writ.
Surprised and dismayed by Burnside’s action, Lincoln sought to undo the damage it caused. Rightly fearing that he could not overrule the general without embarrassing him and simultaneously encouraging bitter dissenters, the president at first had Stanton send him a positive telegram: “In your determination to support the authority of the Government and to suppress treason in your Department, you may count on the firm support of the President.”233 The cabinet, however, demurred; upon learning of their dissatisfaction, Burnside offered once again to resign. Lincoln replied that all cabinet members “regretted the necessity of arresting … Vallandigham, some, perhaps, doubting, that there was a real necessity for it—but, being done, all were for seeing you through with it.”234 On May 19, Lincoln shrewdly undercut Vallandigham’s martyr status by commuting his sentence and, in keeping with a provision of Order 38, directed that the prisoner “be put … beyond our military lines,” and warned that if he returned he would be “kept in close custody for the term specified in his sentence.”235 (Others had been similarly banished, including the notorious spy, Rose O’Neal Greenhow, and Missouri newspaper editor Edmund J. Ellis.) Accordingly, Vallandigham was turned over to puzzled Confederates in Tennessee. After conferring with Jefferson Davis and other Southern leaders, he made his way to Canada where he issued stirring if bootless addresses.
Lincoln’s modification of Vallandigham’s sentence represented one step in defusing the crisis caused by Burnside. Another was his prompt decision to revoke the general’s June 1 order shutting down the vitriolic Chicago Times. That journal had fiercely denounced the administration, especially since the issuance of the Emancipation Proclamation. In February 1863, it declared that the “only way to compel the administration to withdraw its emancipation proclamation and kindred policies is for the democracy of the country to absolutely and unqualifiedly refuse to support the war for the enforcement of these policies.”236 When some of U.S. Grant’s subordinates expressed a desire to silence the Times, the general agreed that it “should have been suppressed long since by authority from Washington,” but in the absence of such authority, it was wise to forbear. Suppression was only “calculated to give the paper a notoriety evidently sought, and which probably would increase the sale of it.”237
Upon learning of Burnside’s high-handed act, Lincoln immediately had Stanton suggest to the general that he might want to rescind the order. The secretary of war explained that the president thought the “irritation produced by such acts is … likely to do more harm than the publication would do.” Though he “approves of your motives and desires to give you cordial and efficient support,” and “while military movements are left to your judgment,” nevertheless “upon administration questions such as the arrest of civilians and the suppression of newspapers not requiring immediate action the President desires to be previously consulted.”238 On June 3, several prominent Chicagoans, including the mayor, urged Lincoln to overrule Burnside, and Senator Lyman Trumbull and Republican Congressman Isaac N. Arnold implored him to give the appeal “serious & prompt consideration.”239 In Springfield, the General Assembly condemned Burnside’s act as a “direct violation of the constitution of the United States and of this State.”240 The president’s decision to honor these requests made him appear sensitive to First Amendment rights. Because Lincoln acted so quickly, the Times was able to resume publication after an interruption of only one day.
Yet another step minimizing the effect of Burnside’s blunders was Lincoln’s public letter to the organizers of the May 16 protest meeting at Albany, chaired by the industrialist Erastus Corning. In that important document, he defended the arrest of Vallandigham and the suspension of habeas corpus. Asserting that the government must execute deserters to maintain its armies intact, he argued that it was equally necessary to punish those who encouraged desertion. “Must I shoot a simple-minded soldier boy who deserts, while I must not touch a hair of a wily agitator who induces him to desert?” he asked rhetorically. Whoever “dissuades one man from volunteering, or induces one soldier to desert, weakens the Union cause as much as he who kills a union soldier in battle.” To be sure, in peacetime, the suspension of habeas corpus would be unconstitutional. But the Constitution provides that “[t]he previlege of the writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion, the public Safety may require it.”
The secessionists, Lincoln argued, cynically expected constitutional scruples to hamper the government’s attempt to preserve the Union. They planned to cry “Liberty of speech,” “Liberty of the press,” and “Habeas corpus” in order “to keep on foot amongst us a most efficient corps of spies, informers, supplyers, and aiders and abettors of their cause in a thousand ways.” While those charges were being debated, the Rebel “spies and others might remain at large to help on their cause.” Alternatively, if the president “should suspend the writ, without ruinous waste of time, instances of arresting innocent persons might occur, as are always likely to occur in such cases; and then a clamor could be raised.” Fully aware that the Rebels would avail themselves of such cynical tactics, Lincoln insisted that he nevertheless “was slow to adopt the strong measures,” for he was “thoroughly imbued with a reverence for the guarranteed rights of individuals.” As the war progressed, however, he was forced to take steps “indispensable to the public Safety,” steps that he believed were “within the exceptions of the constitution.” Civilian courts were “utterly incompetent” to handle the vast number of cases that such a “clear, flagrant, and gigantic case of Rebellion” generated, and juries “too frequently have at least one member, more ready to hang the panel than to hang the traitor.” Moreover, men enticing soldiers to desert might behave in such a way as to commit no crime that civil courts would recognize. The power to suspend “is allowed by the constitution on purpose that, men may be arrested and held, who can not be proved to be guilty of defined crime, ‘when, in cases of Rebellion or Invasion the public Safety may require it.’ ” During a rebellion, “arrests are made, not so much for what has been done, as for what probably would be done.” And who should be arrested? Lincoln dubiously asserted that the “man who stands by and says nothing, when the peril of his government is discussed, can not be misunderstood. If not hindered, he is sure to help the enemy.” Worse still, “if he talks ambiguously—talks for his country with ‘buts’ and ‘ifs’ and ‘ands.’ ”
It would have been advisable, Lincoln argued, if at the outbreak of hostilities the government had arrested men like John C. Breckinridge, Robert E. Lee, Joseph E. Johnston, John B. Magruder, William B. Preston, Simon B. Buckner, and Franklin Buchanan, all high-ranking military leaders in the Confederacy. “Every one of them if arrested would have been discharged on Habeas Corpus, were the writ allowed to operate. In view of these and similar cases, I think the time not unlikely to come when I shall be bla
med for having made too few arrests rather than too many.”
Lincoln denied the Albany protestors’ argument that military arrests could not be made “outside of the lines of necessary military occupation, and the scenes of insurrection.” The Constitution, he pointed out, “makes no such distinction.” Such arrests were justified wherever “in cases of Rebellion or Invasion, the public Safety may require them.” Far from the front lines, “mischievous interference with the raising and supplying of armies” and “the enticing [of] men out of the army” presented a grave military danger. Vallandigham clearly belonged in that category of eligible detainees, Lincoln maintained. “Mr. Vallandigham avows his hostility to the war on the part of the Union; and his arrest was made because he was laboring, with some effect, to prevent the raising of troops, to encourage desertions from the army, and to leave the rebellion without an adequate military force to suppress it. He was not arrested because he was damaging the political prospects of the administration, or the personal interests of the commanding general; but because he was damaging the army, upon the existence, and vigor of which, the life of the nation depends. He was warring upon the military; and this gave the military constitutional jurisdiction to lay hands upon him.” Orators can indirectly encourage soldier boys to desert “by getting a father, or brother, or friend, into a public meeting, and there working upon his feelings, till he is persuaded to write the soldier boy, that he is fighting in a bad cause, for a wicked administration of a contemptable government, too weak to arrest and punish him if he shall desert. I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy.”
To support his argument that the extraordinary measures taken during war would set no dangerous precedents for peacetime, Lincoln graphically insisted that he could “no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one.” During the War of 1812, Andrew Jackson had suspended the writ of habeas corpus and arrested a judge as well as critics of his action. When after the war that same judge fined him $1,000, he paid it; years later Democrats, led by Stephen A. Douglas, persuaded Congress to rescind the fine. Jackson’s precedent did not undermine the Bill of Rights and pave the way to postwar despotism.
Lincoln denied that any partisan motive underlay Vallandigham’s arrest. After all, he pointed out, Burnside was a Democrat, the judge who refused to issue a writ of habeas corpus was a Democrat, and “of all those democrats who are nobly exposing their lives and shedding their blood on the battle-field, I have learned that many approve the course taken with Mr. V[allandigham] while I have not heard of a single one condemning it.” Lincoln suggested that if he had been in Burnside’s position, he might not have arrested Vallandigham, but while he would not shirk ultimate responsibility for the arrest, he believed that “as a general rule, the commander in the field is the better judge of the necessity in any particular case.” He would gladly release Vallandigham as soon as he believed “the public safety will not suffer by it.” In conclusion, Lincoln expressed the belief that as the war continued, the necessity for such strong measures would diminish. But, he insisted, “I must continue to do so much as may seem to be required by the public safety.”241
Some of Lincoln’s case was logically and constitutionally weak, especially his contention that anyone “who stands by and says nothing, when the peril of his government is discussed … is sure to help the enemy.” The New York World with some justice asked: “Was anything so extraordinary ever before uttered by the chief magistrate of a free country? Men are torn from their home and immured in bastilles for the shocking crime of silence!”242 Still, the Corning letter’s homey rhetoric succeeded in allaying many public doubts. George William Curtis called it “altogether excellent” and said the president’s timing was “another instance of his remarkable sagacity.”243 Nicolay and Hay noted that few of Lincoln’s state papers “produced a stronger impression upon the public mind.”244 A visit to several Midwestern cities convinced Hiram Barney that although opposition leaders there were vocal, “the great majority are with the Administration and disposed to support the President in a vigorous enforcement of the laws against Copperheads.”245
On June 30, Erastus Corning and the rest of the Albany committee issued a reply scorning Lincoln’s “pretensions to more than regal authority” and the “misty and cloudy forms of expression in which those pretensions are set forth.” They vehemently deplored the “gigantic and monstrous heresy” that the Constitution contained “a principle or germ of arbitrary power, which in time of war expands at once into an absolute sovereignty, wielded by one man; so that liberty perishes, or is dependent on his will, his discretion, or his caprice.”246
Lincoln did not offer a rejoinder to Corning, but when the Ohio Democratic State Convention made similar arguments, he denied ever saying that “the constitution is different in time of insurrection or invasion from what it is in time of peace & public security.” Rather, he had “expressed the opinion that the constitution is different, in its application in cases of Rebellion or Invasion, involving the Public Safety, from what it is in times of profound peace and public security; and this opinion I adhere to, simply because, by the constitution itself, things may be done in the one case which may not be done in the other.”247 Lincoln failed to answer the telling objection raised by the Ohioans that Vallandigham was entitled to a civil trial under the provisions of the Second Confiscation Act and the March 3, 1863, law authorizing the president to suspend habeas corpus.
The Southern Tide Crests: Gettysburg
As Lincoln and Stanton discussed a replacement for Hooker, they rejected advice to choose McClellan. Lee’s invasion of Pennsylvania so panicked residents of that state and neighboring New Jersey that they urged the reinstatement of Little Mac. A. K. McClure telegraphed the White House: “Our people are paralyzed for want of confidence & leadership & unless they can be inspired with hope we shall fail to do anything worthy of our State or Govt. I am fully persuaded that to call McClellan to a command here would be the best thing that could be done.”248 Tersely Lincoln asked: “Do we gain anything by opening one leak to stop another? Do we gain any thing by quieting one clamor, merely to open another, and probably a larger one?”249
If not McClellan, then who? An obvious choice would be one of the corps commanders in the Army of the Potomac. The president had already asked Darius Couch, who declined because of poor health. John F. Reynolds had complained bitterly about Hooker but refused to take his place. Winfield Scott Hancock and John Sedgwick had expressed no interest in assuming command of the army. By process of elimination, the choice settled on George Gordon Meade, who had distinguished himself in earlier campaigns. When Stanton mentioned that the general was a Pennsylvanian, Lincoln predicted that, like a rooster, he would “fight well on his own dunghill.”250 One soldier likened the choleric general to “a damned old goggle-eyed snapping turtle.”251 Another regarded him as “conservative and cautious to the last degree, good qualities in a defensive battle, but liable to degenerate into timidity when an aggressive or bold offensive becomes imperative.”252 Though industrious and personally fearless, the reserved Meade lacked charisma. The other corps commanders, however, thought highly of him.
Meade accurately anticipated that Lee, who had divided his forces as he entered Pennsylvania unopposed, would have to concentrate them as the Army of the Potomac drew nearer. From different directions the Confederates began streaming toward the small town of Gettysburg. There, during the first three days of July, the bloodiest battle of the war was fought. Lee lost fully a third of his men (28,000) while Meade lost a fifth of his (23,000). The Army of the Potomac, occupying high ground, fended off repeated attacks, including the fabled charge of George Pickett’s divi
sion on July 3. The following day, Lee’s shattered army began retreating toward the Potomac.
While awaiting news from the battlefield as the armies clashed, Lincoln spent many anxious hours in the telegraph office. One evening he rode out to review troops commanded by General T. R. Tannatt. There he asked the regimental band to play the familiar hymn, “Lead Kindly Light.” As he listened, his face grew sad and tears came to his eyes, perhaps prompted by the text: “Lead thou me on/Keep thou my feet; I do not ask to see/ The distant scene,—one step enough for me.”253
Word of the decisive victory filled Lincoln’s heart with joy, though Meade’s order congratulating his troops did not. The general said their job was now to “drive from our soil every vestige of the presence of the invader.” When Lincoln read this proclamation, his heart sank. In anguish he exclaimed: “Drive the invaders from our soil! My God! Is that all?”254 Lincoln called it “a dreadful reminiscence of McClellan. The same spirit that moved McC. to claim a great victory because P[ennsylvani]a & M[arylan]d were safe.” Exasperated, he asked: “Will our Generals never get that idea out of their heads? The whole country is our soil.”255
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