GENERAL ORDER No. 38,
HEAD-QUARTERS DEPARTMENT OF THE 0HI0,
General Orders,
No. 38.
The Commanding General publishes, for the information of all
concerned, that hereafter 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. This order includes the following class
of persons
All officers and soldiers are strictly charged with the
execution of this order.
By command of Major-General BURNSIDE.
LEWIS
Official: Assistant Adjutant-General,
D. R. LARNED,
Captain and Assistant Adjutant-General.
ORDER OF ARREST
Headquarters Department
of
Cincinatti, O.,
Captain CHAS. G. HUTTON, A. D. C., etc.:
Captain-You will proceed at once to
You will confer with the Provost Marshal, who will await
your arrival at
The superintendent of the C., H. and D. Railroad will make
all the necessary arrangements for trains, upon your showing him this order, You should endeavor to arrive here before daylight to-morrow
morning.
Much discretion is allowed to your good judgment in this
matter. By command of Major-General A. E. BURNSIDE.
D. R. LARNED,
Captain and Assistant
Adjutant-General.
Official.
TRIAL OF
HON. CLEMENT L. VALLANDIGHAM,
BY THE
MILITARY COMMISSION.
Proceedings of a
Military Commission, convened at
HEAD-QUARTERS
DEPARTMENT OF THE
Special Orders,
No. 135.
A Military Commission is hereby appointed, to meet at Cincinnati,
Ohio, at 10 o’clock A. M., on Wednesday, the 22nd instant, or as
soon thereafter as practicable, for the trial of such prisoners as may be
brought before it.
DETAIL FOR THE
COMMISSION.
1. Brig.-Gen. R. B. POTTER,
2. Lieut.-Col. E. R. GOODRICH, C. S., U. S. Vols. 3.
3. Major J. L. VAN BUREN, A. D. C.
4. Major J. M. BROWN, 10th
5. Major R. M. CORwINE, A. D. C.
6. Major A. H. FITCH, 115th
7. Captain E. GAY, 16th
8. Captain M. LYDIG, A. D. C.
9. Captain W. IT. FRENCH, C. S., U. S. Vols.
Captain J. M. CUTTS, 11th U. S. Infantry, is appointed
Judge-Advocate.
By command of Major-General
BURNSIDE.
W. P. ANDERSON, A. A. General.
10
[The Commission met and adjourned from time to time, disposing
of such business as was brought before it, till May 6, which was, of its
sittings, the]
TWELFTH DAY.
The Commission met
pursuant to adjournment.
HEAD-QUARTERS
DEPARTMENT OF THE
PRESENT
General POTTER
Colonel DE COURCY
Lieut.-Col GOODRICH
Major VAN BUREN,
Major BROWN
Major FITCH, and
Captain LYDIG, JUDGE-ADVOCATE.
11
The Commission was then duly sworn by the Judge-Advocate,
and the Judge-Advocate was sworn by the President, in the presence of the
accused, and Clement L. Vallandigham was arraigned on the following charge and
specification of charge:
CHARGE.
Publicly expressing, in violation of General Orders No. 38,
from Headquarters Department of the
SPECIFICATION.
In this, that the said Clement L. Vallandigham, a citizen of
the State of Ohio, on or about the first day of May, 1863, at Mount Vernon,
Knox County, Ohio, did publicly address a large meeting of citizens, and did
utter sentiments in words, or in effect, as follows, declaring the present war “
a wicked, cruel, and unnecessary war;” “ a war not being waged for the
preservation of the Union;” “ a war for the purpose of crushing out liberty and
erecting a despotism;” “ a war for the freedom of the blacks and the
enslavement of the whites;” stating “ that if the Administration had so wished,
the war could have been honorably terminated months ago; ‘ that “ peace might
have been honorably obtained by listening to the proposed intermediation of
France;” that “ propositions by which the Northern States could be won back,
and the South guaranteed their rights under the Constitution, had been rejected
the day before the late battle of Fred
12
resist the same, by saying, “ the sooner the people inform
the minions of usurped power that they will not submit to such restrictions
upon their liberties, the better;” declaring “ that he was at all times, and
upon all occasions, resolved to do what he could to defeat the attempts now
being made to build up a monarchy upon the ruins of our free government;” asserting
“ that he firmly believed, as he said six months ago, that the men in power are
attempting to establish a despotism in this country, more cruel and more
oppressive than ever existed before.”
All of which opinions and sentiments he well knew did aid,
comfort, and encourage those in arms against the Government, and could but
induce in his hearers a distrust of their own Government, sympathy for those in
arms against it, and a disposition to resist the laws of the land.
The accused asked delay to procure counsel; stating that he
was engaged in preparing his plea, and required advice.
The Commission was duly cleared for deliberation, and on its
reopening, the Judge-Advocate announced, as its decision, that the Commission
would require the accused to plead “ Guilty,” or “ Not Guilty,” to the charge
and specification, and would then adjourn for half an hour to permit the
accused to procure counsel, when the Commission would proceed to hear the
evidence for the prosecution.
The accused, denying the jurisdiction of the Commission, and
refusing to plead as directed by the Commission, the Commission directed that
the plea of “ Not Guilty” to the specification and charge be entered for him by
the Judge-Advocate.
The Commission then adjourned for half an hour.
The Commission reassembled pursuant to its adjournment.
All persons required to give evidence were directed to withdraw
and remain in waiting till called for.
Captain H. R. HILL, of the 115th Regiment Ohio
Volunteer Infantry, a witness for the prosecution, being duly sworn, testifies
as follows
Question by the
Judge-Advocate.-What is your rank and regiment?
13
Answer.-Captain, 115th Regiment
A.-I was.
Q.-Did you hear the accused address that meeting?
A.-I did.
Q.-How near were you to him while speaking?
A.-I was leaning on the end of the platform on which he was
speaking. I was about six feet from him.
Q.-Was this your position during the whole of the time he
was speaking?
A.-Yes.
Q.-State what remarks he uttered in relation to the war now
being waged, and any remarks he may have made in that connection.
A.-The witness stated that, in order to state his remarks in
the order in which they were made, he would refresh his memory from manuscript
notes made on the occasion. These the witness produced, and held in his hands.
The speaker commenced by referring to the canopy under which
he was speaking-the stand being covered by an American flag-” the flag which,” he
said, “ had been rendered sacred by Democratic Presidents-the flag under the
Constitution.”
After finishing his exordium, he spoke of the designs of
those in power being to erect a despotism; that “ it was not their intention to
effect a restoration of the
14
that it would have ended in the exile or death of those who advocated
a continuation of the war; that “ Forney, who was a well-known correspondent of
the Philadelphia Press, had said that some of our public men (and he, Forney,
had no right to speak for any others than those connected with the Administration),
rather than bring back some of the seceded States, would submit to a permanent
separation of the Union.” He stated that “
15
No. 38 was a base usurpation of arbitrary power; that he had
the most supreme contempt for such power. He despised it, spit upon it; he
trampled it under his feet.” That only a few days before, a man had been
dragged down from his home in Butler County, by an outrageous usurpation of
power, and tried for an offense not known to our laws, by a self-constituted court-martial-tried
without a jury, which is guaranteed to every one; that he had been fined and
imprisoned. That two men had been brought over from
16
to minister upon the altar upon
which his country was being sacrificed.”
Q.-Will you state what other flags or emblems decorated the
platform than the American flag?
A.-There were frames covered with canvas, all of which were
decorated with “ butternuts.” One banner, which was borne at the head of a
delegation, bore the inscription, “ The Copperheads are coming.”
Q.-Did you see any badges worn by the citizens? How many,
and what were those badges?
A.-Yes: I saw hundreds of them wearing butternuts, and many
of them wearing copperheads cut out of cents.
Q.-Did you hear many, and how many, cheering for Jeff Davis,
or expressing sympathy for him?
A.-I heard no cheers for Jeff Davis, but I heard a shout in the
crowd, that “ Jeff Davis was a gentleman, and that was what the President was
not.”
CROSS-EXAMINED BY THE
ACCUSED.
Prisoner-Q.-Did not the speaker refer to the Crittenden propositions,
and condemn the rejection of them?
A.-In endeavoring to show that the restoration of the Union
was not the object of the war, he stated a number of means, this among others,
by which the war could have been ended; he considered, from the fact that none
were adopted, that this was proof that the restoration of the Union was not the
object of the war.
Q.-Did I not quote Judge Douglas’s declaration that the
responsibility for the rejection of those propositions was with the Republican party?
Objected to by the Judge-Advocate.
The Commission was duly cleared for deliberation; and on its
reopening, the Judge-Advocate announced as its decision, that the question
would not be admitted.
Q.-When speaking in connection with Forney’s Press, did I
not say that “ if other Democrats in Washington and myself had not refused all
ideas and suggestions from some prominent
17
men of the party in power, to make peace on terms of disunion, that I believed the war would have been ended in February?
A.-When speaking of the proposition, viz:
“ That it was not a war for the restoration of the
Q.-Did I not expressly refer to myself in that connection, and
say that I had refused, and always would refuse, to agree to a separation of
the States-in other words, to peace, on terms of disunion?
A.-He stated something to that effect. He stated that he wished
to have a voice in the manner in which the
Q.-Referring to the Richmond Enquirer article, did I not say
that “ it, Jeff Davis’s organ, had called upon Dictator Lincoln” to lock up Mr.
Cox, Senator Richardson, and myself in one of his military prisons, because of
our doing so much against Southern recognition and independence?
A.-Yes, substantially, he did say so.
Q.-Referring to General Orders No. 38, did I not say that,
in so far as it undertook to subject citizens not in the land or naval forces
or militia of the United States, in actual service, to trial by court-martial
or military commission, I believed it to be unconstitutional, and a usurpation
of arbitrary power?.
A.-He did, except the words “ in so far.”
Q.-Referring to two citizens of Kentucky tried, by Military
Court in Cincinnati, did I not say that what they were charged with was actual
treason, punishable by death, and that, if guilty, the penalty by statute was
hanging, and they ought to be hung, after being tried by a judicial court and a
jury-instead of which they had been tried by a military court, as I understood,
and sentenced to fine and imprisonment-one of them a fine of three hundred
dollars?
A.-That was, in substance, what he said.
Q.-Did I not also say, in that connection, that the rebel
officer
18
who was tried as a spy by the
A.-It is my recollection that he denounced the Court as an
unlawful tribunal, and that he did use the above language, and then gave the
instances referred to in my direct testimony. He probably did refer to
The Judge-Advocate stated that the accused did distinguish
in his speech the different cases for the purpose of showing jurisdiction,
condemning those cases in which he held the Court to have no jurisdiction, and
approving the case of the spy.
Q.-Did I not distinctly, in the conclusion of the speech,
enjoin upon the people to stand by the Union at all events, and that, if war
failed, not to give the Union up; to try, by peaceable means, by compromise, to
restore it as our fathers made it, and that though others might consent, or be
forced to consent, I would not myself be one of those who would take any part
in agreeing to a dissolution of the Union?
A.-Yes. He said he and the peace men were the only ones who
wished the restoration of the
Q.-Did not one of the “ banners” you refer to as decorated
with “ butternuts” bear the inscription, “ The Constitution as it is, and the
A.-One of them bore that inscription.
Q.-Do you mean to be understood to say that I heard the reference to Jeff Davis, or gave any assent to it whatever?
A.-I can not say thathe did. It
was said loud enough for him to hear, if his attention had been directed that
way. He gave no assent; neither did he give any dissent.
Q.-What was the size of the crowd assembled there that day?
A.-It was very large.
The Commission adjourned to meet again at 9 ½ o’clock A. M.,
on Thursday, the 7th instant.
ROBERT B. POTTER,
BRIG.-GEN. Vols.,
President.
J. M. CUTTS, CAPT. 11th INF., Judge-Advocate.
19
THIRTEENTH DAY.
PRESENT:
Brig.-Gen. POTTER,
Col. DE COURCY,
Lieut.-Col. GOODRICH,
Major VAN BUREN,
Major BROWN,
Major FITCH, and
Capt. LYDIG,
JUDGE-ADVOCATE.
The proceedings of the preceding day were read by the
Judge-Advocate, and approved.
All persons required to give evidence were directed to
withdraw and remain in waiting until called for.
The cross-examination of Captain Hill was continued by the
accused.
Q.-In speaking of the character of the war, did I not expressly
say, as Mr. Lincoln, in his proclamation,
A.-I do not recollect that he did. The language he made use
of I understood to be his own.
Q.-Again, in speaking of the character of the war, did I not
expressly give, as proof, the President’s proclamation of
The accused stated that he offered this question as an
explanation of the purpose and object of his declarations as to the present
character of the war, and as his authority for his statement. If he stated what
the President stated, he (the accused) could not be held disloyal for so doing.
The Judge-Advocate stated that the question was one which clearly
put in question, not the utterance of certain words, opinions, and sentiments,
but their propriety, truth, and justice when uttered, and required the
Commission to pass judgment, not upon sentiments uttered by the accused, but
upon certain proclamations of the President of the
20
to the question as one designed, in
his belief, not to meet the merits of this case, but to prepare a record in
this case of a political character, and for political uses.
The Commission was duly cleared for deliberation, and on its
reopening the Judge-Advocate announced, as its decision, that the question
would not be admitted.
Q.-Did you continue at the same place during the delivery of
the whole speech?
A.-I did.
Q.-Were your notes taken at the time, or reduced to writing
after the speech was over?
A.-They were taken at the time. All I used before the Court
were just as they fell from his lips.
Q.-Were you not in citizen’s clothes; and how came you to be
at
The accused insisted on the question on the ground that it
would show the temper and spirit of the witness, and his prejudices, and as
showing that the notes were taken with reference to arrest and prosecution
before this Commission, he being in the service as Captain, and his regiment in
The question was objected to by the Judge-Advocate, and the
Commission was duly cleared for deliberation; and, on its re-opening, the
Judge-Advocate stated that he had withdrawn his objection, and the question
would be admitted.
The question was then put to the witness.
A.-I was in citizen’s clothes, and I went up for the purpose
of listening to any speech that might be delivered at that meeting. I had no
order to take notes or report.
Q.-Did you take notes of any other speech?
A.-I commenced taking notes of the speech of Mr. Cox, but I
considered it harmless after listening to him a short time, and stopped. I took
no notes of any other speeches.
Q.-Were you not expressly sent to listen to my speech on
that occasion?
A.-I was not, any more than to the other speeches.
Q.-By whom were you sent?
21
A.-By Captain Andrew C. Kemper, Assistant Adjutant-General
of the military commandant of the city of
Q.-Did you make report to him on your return?
A.-I did not. I reported first to Colonel Eastman himself,
and from there went to Head-quarters Department of the
Captain JOHN A. MEANS, 115th Ohio Volunteers, a witness for the prosecution, being duly sworn, testifies as follows Judge-Advocate.-
Q.-What is your rank and regiment?
A.-Captain, 115th
Q.-Were you present at a meeting of citizens, held at Mount
Vernon, Ohio, on or about May 1, 1863.
A.-I was.
Q.-Did you hear the accused address that meeting?
A.-I did.
Q.-How near were you; and state your position with reference
to the speaker, and state whether you heard the whole or a part of his speech?
A.-I was in two or three positions. Most of the time about
ten feet in front of the stand directly in front. I heard the whole of his
speech.
Q.-State what, if any remarks, you heard the accused make
with reference to the war, or upon subjects in that connection? Give, as near
as you can, his language.
A.-He stated, at one time, that the war was not waged for
the preservation of the
Objected to by the accused, on the ground that he had
applied for a subpoena, summoning Fernando Wood, Esq., of New York, and
directing him to bring with him a letter signed by the President, referring to
this plan, which had been refused by the Judge-Advocate.
The Judge-Advocate stated that he would withdraw so much
22
of the specification as related to
remarks alleged to have been made by the accused with reference to the
termination of the war.
The witness was directed to omit any testimony he might
possess on that point.
The witness continued: The accused stated, that “ if the
plan he had proposed himself had been adopted, peace would have been restored,
the
23
throne. In one part of his speech he
styled the President as “King Lincoln.”
CROSS-EXAMINED BY THE
ACCUSED-
Prisoner.-Q--Did you make any notes at all of my speech, or
are you testifying solely from memory?
A.-I took no notes at the delivery of the speech; but, after
Pendleton commenced speaking, went to the hotel and made minutes. I made those
minutes an hour and a half, or thereabouts, after I heard the speech.
Q.-About what was the length of the speech?
A.-I think about an hour and a half.
Q.-You speak of my saying the North might be won back. Was
it not that the South might be won back, her rights being guaranteed under the
Constitution?
A,-No: I noticed this particularly. It struck me very forcibly.
Q.-You say that I said that I would not counsel resistance
to military or civil laws. Did I not expressly counsel the people to obey the
Constitution and all laws, and to pay proper respect to men in authority, but
to maintain their political rights’ through the ballot-box, and to redress personal
wrongs through the judicial tribunals of the country, and in that way put down
the Administration and all usurpations of power?
A.-He said, at the last of his speech, to come up united at
the ballot-box and hurl the tyrant from his throne. I did not understand him to
counsel the people to submit to the authorities at all times. I do not remember
the language as stated, but part of it I remember.
Q.-Did I not say that my authority to speak to the people in
public assemblages on all public questions was not derived from General Orders
No. 38, but from General Orders No. 1, the Constitution of the United
States-George Washington, commanding.
A.-I understood him to say, that his authority to speak to
the people was higher than General Orders No. 38, by that military despot,
Burnside. It was Orders No. 1, signed
24
Q.-Were not the words “ Tod,
Lincoln and Burnside “ used, and that I did not ask their consent to speak?
A.-He did use these words at one time.
Q.-Were not the remarks you say I made, about spitting and
trampling under foot, expressly applied in reference to arbitrary power
generally, and did I not in that connection refer to General Orders No. 9 in
Indiana, signed by General Rascal, denying the right to criticise
the war policy of the Administration.
A.-The remarks in reference to spitting upon, etc., were
made in direct reference to General Orders No. 38. He some time afterward, in
speaking of the tyranny of the Administration, said that a General Order had
been issued in Indiana denying the rights of the people to criticise
the military power of the Administration, and, if submitted to, would be
followed by a similar one in Ohio.
Q.-Do you undertake to give any connected or methodical
statement of my speech of an hour and a half on that occasion?
A.-I do not pretend to give his speech just as he spoke it.
I only remember part.
Q.---Were you not present in citizen’s clothes? How came you
to be at Mount Vernon that day-by whose order, and were you sent for the
purpose of listening to and reporting the speech?
A.-I was present in citizen’s clothes, by order of Colonel
Eastman. I was sent there to listen to the speech, and report his language as
near as I could, and I did make report to Colonel Eastman.
Q.-Did you make report of any other speech on that occasion?
A.-I related the substance of Mr. Cox’s and of Mr. Kenny’s
speeches.
Q.-Were you directed to go to
A.-I was not.
Q.-Was any object stated to you, and if so, what, for your going
there in citizen’s clothes, listening to, and reporting the speech
A.-Not any.
The Judge-Advocate stated that he did not propose to
re-ex-amine the witness, and having no other witnesses, would here close the
testimony for the prosecution.
The accused asked to consult with his counsel, who did not
appear, and had not appeared in the courtroom during the trial, before entering
upon his defense.
The Commission adjourned for fifteen minutes to enable the
accused to consult with his counsel.
The Commission reassembled pursuant to adjournment.
Hon. S. S. Cox, a witness for the defense, being duly sworn,
testifies as follows
Prisoner.
Q.-Were you present at a public political meeting of
citizens of
A.I was present as one of the speakers.
Q.-Did you hear the speech of Mr. Vallandigham that day?
A.-I did. I heard the whole of it.
Q.-State where your position was during its delivery; what
your opportunity for hearing was; whether you heard it all, and whether and why
your attention was particularly directed to it?
A.-Before the speaking began, I was on the stand a few feet
from Mr. Vallandigham, most of the time standing near him, so that I could not
fail to hear all that he said. I do not think my attention was distracted but
for perhaps a few moments during the entire speech. I had not heard Mr.
Vallandigham speak since the adjournment of Congress, and as I came in from the
West, I did not know that he was to be there. I took an especial interest in
listening to his speech throughout. Having to follow him, I naturally noted the
topics which he discussed.
Q.-Did you hear allusions to General Burnside, by name, and
if so, what were they?
A.-The only allusion he made to the General was, I think,
26
near the beginning of his speech, in which he said he was
not there by the favor of Abraham Lincoln, Governor Tod,
or Ambrose E. Burnside.
Q.-Was any epithet applied to him during the speech?
A.-No, Sir. If there had been I should have noticed it,
be-cause General Burnside is an old friend of mine, and I should have
remembered any odious epithet applied to him.
Q.-Did you hear the references to General Orders No. 38, and
if so, what were they? State fully.
A.-The only reference made to that order in that speech was
something to this effect: that he did not recognize (I do not know that I can
quote the language) Order No. 38 as superior to Order No. 1, the Constitution,
from George Washington commanding.
Q.-Were any insolent epithets, such as spitting upon, tram-pling under foot, or the like, used at any time in the
speech, in reference to this Order 38; and if any criticism was made upon it,
what was that criticism?
A.-I can not recall any denunciatory epithets applied to
that order. I did not hear any that I can remember. The only criticism I heard
was that in reference to the Constitution. Mr. Vallandigham discussed these
matters very briefly, taking up the larger portion of his speech with another
proposition. The other proposition was in connection with closing of the war by
separation. He charged that men in power were willing to make peace by
separation. He exhausted some time in reading proofs from publications of
Montgomery Blair and Forney. He also stated there were private proofs yet to be
disclosed, which time would disclose. He said they pursued this thing until
they found that Democrats were unwilling to make peace, except upon a basis of
the restoration of the whole
Q.--Do you remember to what, if at all, in connection with future
usurpations of power, he applied his strongest language?
A.-I can not say as to his “ strongest language,” for he always
speaks pretty strongly. He denounced, in strong lan-
27
guage,
any usurpations of power to stop public discussions and the suffrage. He
appealed to the people to protect their rights, as a remedy for every grievance
of a private nature. He coun-seled no resistance
except such as might be had at the ballot-box.
Q.-Was any thing said by him at all looking to forcible
resistance of either laws or military orders?
A.-Not as I understand it. He stated the sole remedy to be
in the ballot-box, and in the courts. I remember this distinctly, for I had
been pursuing the same line of remark at
Q.-Was any thing said by me on that occasion in denunciation
of the conscription bill, or looking in any way to resistance to it?
A.-My best recollection is that Mr. Vallandigham did not say
a word about the conscription.
Q.-Did he refer to the French conscription bill, and, if
not, was such reference made, and by whom?
A.-He did not. I did.
Q.-Do you remember his quotation from President Lincoln’s
proclamation of
A.-I do not. He may have done so.
Q.-Did you hear similar language used by him?
A.-I did not.
Q.-Do you remember his comments on the change of the policy
of the war some year or so after its commencement, and what references were
made by him in that connection?
A.-He did refer to the change in the policy of the war, and
I think devoted some time to show that the war had been deviated from a war for
the restoration of the
Q.-What did he claim to have been its original purpose as
avowed, and how show it?
A.-He referred, in that connection, to the Crittenden Resolu-
28
tions,
declaring the war to be one for the restoration of the
Q.-Did he counsel any other mode in that speech of resisting
usurpations of arbitrary power, except by free discussion and the ballot-box?
A.-He did not.
Q.-Were any denunciations of the officers of the army indulged
in by him, or any offensive epithets applied to them?
A.-He occasionally used the words “ the President and his
minions,” but I did not understand him to use them in connection with the army.
It was not in that connection. It was in connection with arbitrary arrests.
Q.-Do I understand you to say that the denunciations to
which you refer were chiefly in reference to arbitrary arrests?
A. My recollection is that that is the connection in which
they were used. He applied some pretty strong epithets to spies and informers,
whom he did not seem to like very much.
Q.-Do you remember the connection in which some words to
this effect were used at the close of the speech, with regard to the
possibility of a dissolution of the
A.-I could not give the exact words. I remember the metaphor,
that “ he would not be a priest to minister at the altar of disunion.” He was speaking
about the
Q.-What counsel did I give at the close of my speech upon that
subject?
A.-He invoked the people under no circumstances to surrender
the
Q.-Do you remember any rebuke, in connection with the
A.--Yes, I do. He denounced the applause of
Q.-Was any thing said, in that speech, in reference to the
war, except in condemnation of what he claimed to be the policy upon which it
was now being waged, and as a policy which he
insisted could not restore the
A.-I can only give my understanding. I do not know about
inferences people might draw. I understood his condemnation of the war to be
launched at its perversion from its original purpose.
The Court here adjourned to meet at 4 ½ o’clock P. M. of the
same day.
4 ½ O’CLOCK P. M.
The Court met pursuant to adjournment.
The witnesses, Locky Harper, J. T.
Irvine, and Frank H. Hurd, summoned for the defense,
not having appeared, the Judge-Advocate stated that if it would avoid an
adjournment he would admit that they, if present, would, under oath, testify
substantially the same as Hon. S. S. Cox.
Thereupon the accused stated that he would close his
defense, and offer no further testimony.
The Judge-Advocate stated that he did not propose to offer
any further testimony.
The accused then read to the Commission a statement (of
which Mr. Vallandigham has a copy).
[The statement here referred to does not appear in the
record of the trial. It is as follows:]
PROTEST OF MR.
VALLANDIGHAM.
Arrested without due “ process of law,” without warrant from
any judicial officer, and now in a military prison, I have been served with a “
charge and specifications,” as in a Court-martial or Military Commission.
I am not in either “ the land or naval forces of the United
States, nor in the militia in the actual service of the United States,” and
therefore am not triable for any cause, by any such Court, but am subject, by
the express terms of the Constitu-tion, to arrest
only by due process of law, judicial warrant, regularly issued upon affidavit,
and by some officer or Court of competent jurisdiction for the trial of
citizens, and am now enti-tled to be tried on an
indictment or presentment of a Grand Jury of such Court, to speedy and public
trial by an impartial
30
jury of the State of
And all these I here demand as my right as a citizen of the
But the alleged “ offense is not known to the Constitution
of the
C. L. VALLANDIGHAM.
The Judge-Advocate stated that he had no reply to make to
the statement of the accused. In so far as it called in question the
jurisdiction of the Commission, that question had been decided by the authority
convening and ordering the trial, and he was not called upon to discuss it, nor
had the Commission been willing at any time to entertain it. In so far as any im-plications or inferences, designed or contemplated in
the state-ment, of his right of counsel, and to have
witnesses summoned for his defense, were involved, the Judge-Advocate had sum-moned such witnesses as the accused had requested, and he
had had the benefit of three lawyers of his own choice as counsel, who had,
however, remained continuously in an adjoining room during the continuance of
the trial-the accused, himself, for some reason unknown, not having introduced
them before the Com-mission, though the Commission had expressly authorized him
31
to do so, and had adjourned to
permit his obtaining their presence.
The facts alleged in the specification were to be decided
upon the evidence before the Commission, and he believed it unnecessary to
comment thereon.
The question of the criminality of the facts alleged, if
proved, was also a question purely for the Commission, and which the Judge-Advocate
deemed it unnecessary to enforce by argument. He, therefore, without further
comment, submitted the case to the consideration of the Commission.
The Commission was duly cleared for deliberation.
§§§§§
HEAD-QUARTERS
DEPARTMENT OF THE
General Orders,
No. 68.
I. At a Military Commission which convened at Cincinnati,
Ohio, on the 6th day of May, 1863, pursuant to Special Orders No. 135, of April
21, 1863, current series, from these Head-quarters, and of which Brigadier-General
Robert B. Potter; U. S. Vols., is President, was arraigned and tried, Clement
L. Vallandigham, a citizen of the State of Ohio, on the follow-ing charge and specification of charge, to-wit:
CHARGE.
Publicly expressing, in violation of General Orders No. 38,
from Head-quarters Department of the
SPECIFICATION.
In this, that the said Clement L. Vallandigham, a citizen of
the State of
32
Mount Vernon, Knox County, Ohio, did publicly address a
large meeting of citizens, and did utter sentiments in words, or in effect, as
follows, declaring the present war “ a wicked, cruel, and unnecessary war;” “ a
war not being waged for the preservation of the Union;” “ a war for the purpose
of crushing out liberty and erecting a despotism;” “ a war for the freedom of
the blacks and the enslavement of the whites;” stating “ that if the
Administration had so wished, the war could have been honorably terminated
months ago;” that “ peace might have been honorably obtained by listening to
the proposed intermediation of France;” that “ propositions by which the
Northern States could be won back, and the South guaranteed their rights tinder
the Constitution, had been rejected the day before the late battle of Fred
All of which opinions and sentiments he well knew did aid,
comfort, and encourage those in arms against the Government, and could but
induce in his hearers a distrust of their own Government, sympathy for those in
arms against it, and a disposition to resist the laws of the land.
To which charges and specifications, the prisoner refusing
to plead either “ Guilty,” or “ Not Guilty,” the Commission directed the
Judge-Advocate to enter on the records the plea of 11 Not Guilty.”
FINDING AND SENTENCE.
The Commission, after mature deliberation on the evidence
adduced, and the statement of the accused, find the accused, Clement L.
Vallandigham, a citizen of the State of Ohio, as follows
Of the specification (except the words, “ That propositions
by which the Northern States could be won back, and the South guaranteed their
rights under the Constitution, had been rejected the day before the battle of
Fred
And as to these words, “ Not Guilty.”
Of the charge, Guilty.”
And the Commission do, therefore, sentence him, the said
Clement L. Vallandigham, a citizen of the State of
II. The proceedings, finding, and sentence in the foregoing
case are approved and confirmed, and it is directed that the place of
confinement of the prisoner, Clement L. Vallandigham, in accordance with said
sentence, be
By command of Major-General
BURNSIDE.
LEWIS
Assistant Adjutant-
General.
Official
W. P. ANDERSON,
Assistant Adjutant-General.
ORDER OF THE PRESIDENT.
Cipher.]
[By Telegraph from
To MAJOR-GENERAL BURNSIDE,
Commanding Department of the
SIR-The President directs that, without delay, you send C.
L. Vallandigham, under secure guard, to the Head-quarters of General Rosecrans, to be put by him beyond our military lines, and
that in case of his return within our lines he be arrested and kept in close
custody for the term specified in his sentence.
By order of the PRESIDENT.
ED. M. CANBY,
Brig.-Gen, and A. A. G.
Please acknowledge receipt of this, and time when received, by request of
BRIG.-GEN. CANBY.