Vallandigham was arrested, tried by court martial, and condemned to imprisonment. There was an immediate hue and cry, in consequence of which Burnside, who reported the affair, felt called upon also to offer to resign. Lincoln's reply was characteristic: "When I shall wish to supersede you I shall let you know. All the Cabinet regretted the necessity for arresting, for instance, Vallandigham, some perhaps doubting there was a real necessity for it; but being done, all were for seeing you through with it." Lincoln, however, commuted the sentence to banishment and had Vallandigham sent through the lines into the Confederacy.
It seems quite plain that the condemnation of Lincoln on this issue of usurpation was not confined to the friends of the Confederacy, nor has it been confined to his enemies in later days. One of Lincoln's most ardent admirers, the historian Rhodes, condemns his course unqualifiedly. "There can be no question," he writes, "that from the legal point of view the President should have rescinded the sentence and released Vallandigham." Lincoln, he adds, "stands responsible for the casting into prison of citizens of the United States on orders as arbitrary as the lettres-de-cachet of Louis XIV." Since Mr.
Rhodes, uncompromising Unionist, can write as he does upon this issue, it is plain that the opposition party cannot be dismissed as through and through disunionist.
The trial of Vallandigham made him a martyr and brought him the Democratic nomination for Governor of Ohio*. His followers sought to make the issue of the campaign the acceptance or rejection of military despotism. In defense of his course Lincoln wrote two public letters in which he gave evidence of the skill which he had acquired as a lawyer before a jury by the way in which he played upon the emotions of his readers.
* Edward Everett Hale's famous story "The Man Without a Country", though it got into print too late to affect the election, was aimed at Vallandigham. That quaint allegory on the lack of patriotism became a temporary classic.
"Long experience [he wrote] has shown that armies cannot be maintained unless desertion shall be punished by the severe penalty of death. The case requires, and the law and the Constitution sanction, this punishment. 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? This is none the less injurious when effected 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 and a contemptible 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."His real argument may be summed up in these words of his:
"You ask, in substance, whether I really claim that I may override all the guaranteed rights of individuals, on the plea of conserving the public safety--when I may choose to say the public safety requires it. This question, divested of the phraseology calculated to represent me as struggling for an arbitrary prerogative, is either simply a question who shall decide, or an affirmation that nobody shall decide, what the public safety does require in cases of rebellion or invasion.
"The Constitution contemplates the question as likely to occur for decision, but it does not expressly declare who is to decide it. By necessary implication, when rebellion or invasion comes, the decision is to be made, from time to time; and I think the man, whom for the time, the people have under the Constitution, made the commander-in-chief of their army and navy, is the man who holds the power and bears the responsibility of making it.
If he uses the power justly, the same people will probably justify him; if he abuses it, he is in their hands to be dealt with by all the modes they have reserved to themselves in the Constitution."Lincoln virtually appealed to the Northern people to secure efficiency by setting him momentarily above all civil authority.
He asked them in substance, to interpret their Constitution by a show of hands. No thoughtful person can doubt the risks of such a method; yet in Ohio, in 1863, the great majority--perhaps everyone who believed in the war--accepted Lincoln's position.
Between their traditional system of legal juries and the new system of military tribunals the Ohio voters made their choice without hesitation. They rejected Vallandigham and sustained the Lincoln candidate by a majority of over a hundred thousand. That same year in New York the anti-Lincoln candidate for Secretary of State was defeated by twenty-nine thousand votes.
Though these elections in 1863 can hardly be called the turning-point in the history of the Lincoln Government, yet it was clear that the tide of popularity which had ebbed so far away from Lincoln in the autumn of 1862 was again in the flood.
Another phase of his stormy course may be thought of as having ended. And in accounting for this turn of the tide it must not be forgotten that between the nomination and the defeat of a Vallandigham the bloody rebellion in New York had taken place, Gettysburg had been fought, and Grant had captured Vicksburg.
The autumn of 1863 formed a breathing space for the war party of the North.