Clement L. Vallandigham Court-Martial: 1863 - The Court Martial

Vallandigham was led by a squad of soldiers into a room in the Newport barracks to face the panel—none of whom, as it happened, was a citizen of Ohio. Vallandigham could not have known that, but at his first opportunity to speak he protested that such a military tribunal had no authority to be trying him, a civilian. The presiding officer ignored this, and the judge advocate read the charges: "Publicly expressing, in violation of 'General Orders, No. 38' … sympathies for those in arms against the Government of the United States, declaring disloyal sentiments and opinions, with the object and purpose of weakening the power of the Government in its effort to suppress the unlawful rebellion." Asked to enter a plea, Vallandigham—who was himself a lawyer—repeated that he did not recognize the authority of this court. For that reason, too, he declined to have his lawyers at his side during the trial.

The only witnesses called against Vallandigham were two army officers who had been sent by Burnside in civilian clothes to attend the rally where he had spoken so defiantly. Vallandigham acted as his own counsel in crossexamining them, but they both had made notes and there was little that Vallandigham wanted to deny except minor details. Thus he corrected the witness who testified that Vallandigham had said Lincoln's administration had "insolently rejected" an appeal by France to mediate a settlement of the war: "The word used was 'instantly,' not 'insolently.'"

On the second day, Vallandigham called his only witness, Ohio congressman Samuel S. Cox; although a Democrat like Vallandigham, he supported the federal decision to go to war and was regarded as a moderate. Cox, who had also been present at the rally, testified that Vallandigham had not attacked Burnside personally; that he had not specifically attacked "General Orders, No. 38"; that he had not advocated resisting any laws; and that all Vallandigham wanted was peace and reunion. Vallandigham's examination of Cox allowed him to emphasize several of his other favorite arguments:

Vallandigham: Do you remember his comments on the change of the policy in the war?

Cox: He did refer to the change in the policy of the war, and devoted some time to showing that it was now carried on for the abolition of slavery; that it has been perverted from a war for the preservation of the Union to one for the abolition of slavery.…

Vallandigham: Did he counsel any other mode in that speech of resisting usurpation of arbitrary power, except by free discussion and the ballot box?

Cox: He did not.

The trial concluded with Vallandigham's own summation, in which he continued to challenge the right of the military court to be trying him, continued to assert the right of all citizens to criticize, and continued to deny that he had ever advocated disobedience to the laws of the land.

The room was then cleared so that the panel could deliberate, but since the "jury" was composed of officers handpicked by General Burnside, there was little doubt about their verdict. After three hours, Vallandigham was called back in and informed of the verdict. He was found guilty of the charge and all its specifications except one. The sentence was that he be "placed in close confinement in some fortress of the United States, to be designated by the commanding officer of the Department, there to be kept during the continuance of the war."