discouraging enlistments or encouraging soldiers to desert or trying to stop conscription. now, i'll give you an example of this you might not think about. prostitution. many brothel owners, in fact, were arrested by the military during the civil war. you wonder why. well, they didn't only offer the service they're famous for. brothels also would often have civilian clothes available, so a soldier could go to a brothel and he could either purchase what brothels are famous for, or he could purchase a civilian set of clothes. and then he could get rid of his union army uniform and escape into the north and not be detected. and so those are the kinds of people who were being arrested most often during the civil war, people who are either aiding the confederacy or hurting the union war effort. that said, there were still a number of prominent politicians who were arrested during the

civil war. now, antiwar democrats were called copperheads. this was an epithet, it signified they were like a poisonous snake. this is a cartoon of 1862 or 1863 and shows you the faces of some prominent democrats on the bodies of copper head snakes and you can see that they're striking at the union to try to bite her, to poison the union from within the union. the most famous arrest during the civil war was of a copper head politician named clement valandingham. today you read lincoln's letter and we'll talk about that in couple of minutes. i want to give you a little background to that letter. clement was a prominent democratic congressman from ohio. this is him on the left here. in 1862, he lost his seat in congress and so he returned to ohio and he decided that he wanted to run for the governorship. he was not the democrat's first

choice. so he had to come up with a way to become their first choice. the plan that he had was to become a martyr. he believed that if he could get himself arrested, then he would become a hero to democrats throughout the north and he would then become their nominee and become elected governor of ohio. now, he got some help from an unlikely source. next to him here is a man named ambrose burnside. ambrose burnside was a politician who became a general. now, for those of you with si sideburns, your facial hair comes from this guy's mutt muttonchops. burnside, you swap the two names around and you get sideburns. now you know the history of your facial hair. he was a failure as a military commander.

he sent wave after wave of union soldiers into an entrenched confederate line and lost thousands and thousands of soldiers in december 1862. it was to terrible an assault he offered to lead the next charge i guess knowing that he'd be killed in it. and his subordinates talked him out of doing such a rash thing. after this failure in the field lincoln decided, i can't leave him in command any more, i'm going to move him out to ohio. and hopefully in ohio he won't have any major battles that he has to deal with and he can take charge of a civilian area. so in the spring of 1863 ambrose burnside was in charge of the department of the ohio, which included ohio, indiana, parts of kentucky, and other areas. he looked around him and saw many copperheads, people who opposed the war, people who opposed emancipation, people who spoke out against lincoln. he issued a military order and

i'm going to read you a little bit of it. in april 1863, general orders number 38. listen to what he does and see if you have any reaction to it. the habit of declaring sympathies for the enemy will not be allowed in this department. persons committing such offenses will be at once arrested with a view to being tried as above stated, that is with the military commission, or sent beyond the lines into the lines of their friends. people who sneak out or sympathize with the enemy will either be tried by military commission or sent, beganish ba into the confederacy. it must be distinctly understood that treason expressed or implied will not be tolerated in this department. listen to that again. it must be distinctly understood that treason, expressed or implied, will not be tolerated

in this department. what's going on here? what are some of your reactions to that? taylor? >> a very broad definition of treason. because anything -- you could say something very seemingly innocent and someone could twist it around saying, you implied treason by your statement. >> yeah, it's a very broad definition. how does it line up with the constitutional definition of treason? treason expressed or implied, frank? >> the constitution requires an overt act rather than simply implications. and so it's hard to see an overt act but you can take anything to be an implication. >> exactly. the constitution requires an overt act. >> chris. >> get rid of their enemies. they can construe what somebody says if that's the political opponent of yours, a democrat, and you want to get rid of him because he's popular, you can say he's a treasonist, look at what he just said. >> good. you can construe someone's words to be sympathetic to the enemy. what if someone comes out and says, i oppose emancipation?

emancipation helps the union war effort so if you oppose it, maybe you want to hurt the union war effort. if you want to hurt the union war effort, this argument would go, maybe you sympathize with the confederacy. if you sympathize with the confederacy, maybe we'll try you under general orders number 38. this was a very broad definition of treason. now, clement looked at this and said here is my chance. i can get arrested under this. i can become the martyr i want to be. so valandingham went out into ohio and started giving speeches criticizing general orders number 38. he said, i am downed by general orders number one, by which he meant the u.s. constitution and the bill of rights, the first amendment. burnside got wind of what valandingham was doing, so in may 1863 burnside selected ten citizens from cincinnati and two captains from the army who he

dressed in civilian clothes and sent him out to listen to a speech. and vlanningham spoke for over two hours. my lectures are short compared to his. these 12 men in civilian clothes had notebooks and stood close to the stage and wrote down everything they could that he said. and they sent their notes back to general burnside. and burnside said, okay, now i have the evidence i need. vlanningham criticized the order and said burnside was violating the first amendment. and he called on people to vote lincoln out of office, referring to lincoln as king lincoln. so burnside, taking this evidence, dispatched a group of union soldiers and they went to vlandingham's home, this is his home here, in dayton, ohio. may 5th, 2:00 in the morning. for some reason these arrests always seem to happen at 2:00 in the morning. and they knock on the door and ring the bell and he came to his upstairs window. he'd been asleep, he's roused

from his bed, probably running his hands over his eyes a little, looks down and sees these soldiers with their bayonets glistening in the light. and he says, what do you want? and they said, burnside has given us an order to arrest you. please come down. and vlandingham yelled back, if burnside wants me, let him come up and take me. well, the men were prepared for something like this. so they pulled out axes and they tried to start chopping down the front door. this is a former congressman. they couldn't get through. it was a sturdy door. they went around to the back and chopped down his back door. this is a day before light switches, okay? they're fumbling through his house in the dark trying to find their way to the upstairs bedroom. they finally find the stairs. in the meantime he has locked two doors into his bedroom. they get up the stairs, they get to the locked door, they chop it down with an ax. they get to the second locked door, they chop it down.

they crawl through the area they open. they find vlandingham standing in his pajamas. and he says, well, i've been overwhelmed by a superior force, i guess i must vender. surrender. his wife and sister-in-law, wife and her sister, were standing in the bedroom screaming hysterically. this was just a terrible experience for them. you can imagine being awoken at 2:00 in the morning by something like this. he was sent to cincinnati and he was tried before a military commission. he was convicted of speaking disloyally and he was sentenced to hard labor for the duration of the war. now, this was an embarrassment to lincoln. lincoln didn't want his military commanders going around arresting anyone who spoke out against the lincoln administration. so lincoln was placed in a difficult position. do you uphold the arrest or do you undermine your military

commander in the field? he found what he thought was a good compromise. he decided, well, if vlandingham likes the south so much, why don't we just send him there? so this is a drawing from 1863 showing vlandingham being transferred over from union lines to confederate lines in tennessee. and the confederates didn't want him and he didn't want to be there. he was antiwar but didn't see himself as pro confederate. there's a distinction there. he eventually made his way to richmond and traveled down the james river a mile away from us and he went out to the ocean and went up to canada and he settled in windsor, canada, which is right across the border from detroit. well, he got the martyrdom he wanted. he became a hero among democrats nationwide. he was nominated to be governor of ohio. and he ran for governor of ohio from exile. but he lost by a landslide.

something like 100,000 votes. when he came back into the union, lincoln ordered his military commanders, leave this guy alone. let's not make a martyr out of him again. this is a cartoon from 1863 showing president lincoln and president davis playing badminton. neither of them wants him in their nation and they're trying to bat him back and forth. now, congress had to react to these situations. we're going to talk more about this next week, congress' reaction. but i just want to tell you a little bit about how congress reacted. congress began debating the civil liberties issue and the suspensions of habeas corpus as early as the summer of 1861. but members of congress, as is often the case, couldn't come up with a solution. some people in congress thought, you know what, lincoln is doing

what he needs to do and we just need to let him do it. it's legal, what he's doing. other members of congress thought, lincoln's doing what he needs to do but he's doing it unlawfully. we need to give him permission. and other members of congress thought, lincoln is acting illegally, we need to censure him for what he's doing. and so for the first two years of the war, congress could not decide what to do about the suspension of habeas corpus. finally in march of 1863 congress passed a law, and the law did three things. first, it said that the president is authorized to suspend the writ of habeas corpus during the rebellion. this was a compromise in language -- is authorized. and congress chose the language because it was vague. was that language saying that what lincoln had done in the past is okay now?

i'm not sure. he could certainly suspend the writ of habeas corpus in the future. congress couldn't agree on whether or not what lincoln had been doing was legal and said they used vague language to try to capture that sentence. second, the habeas corpus act offered some protection to civilians who were arrested by the military. it said that civilians who were arrested by the military can be held in a military prison but not indefinitely. only until the next term of the local federal court and then those civilians either needed to be indicted and prosecuted for the crime that they were accused of committing or they needed to be set free. now, as we'll talk about more next week, lincoln essentially ignored this provision. he continued to arrest people when he believed public safety required it, and the military continued to try civilians in military courts even after congress passed this law.

third, the habeas corpus act of 1863 offered protection to military officers who did the arresting. let me ask you a question. if you're wronged in a serious way, a way that has some financial implications or seriously causes damage to you as a person, what do you do? you sue. right? america has always been a litigious society, and the same thing happened in the 1860s. when people like john merriman got out of prison, one of the first things they did was sue the commanding officers who had overseen their arrests. when merriman got out of prison he sued general cadwalder for $50,000 in damages. $50,000 is a lot of money today. it is to me, at least. back then, if you were to translate $50,000 to today's currency, you're looking at about $900,000. so military officers were very vulnerable. they could be taken into court

and prosecuted for doing what they had been ordered to do. so congress passed this provision of the habeas corpus act, in a sense in a way to try to protect military officers. this part of the act did two things. one, it said if you are an officer who has committed an arrest and is being sued for unlawful arrest or assault and battery or breaking and entering, if you can produce an order from the president showing that you were ordered to do this, you can use that as a defense in court. and the second thing that it did was it said, prosecutions cannot be in state courts where local voters elect the judges. they'll be only in federal courts where the judges are appointed by the president, and hopefully have more of a national interest in mind. now if you'll pardon my vanity for one moment. i love this picture of john merriman. when you're doing research for a

book, you look everywhere you can for something no one has ever found before. i actually found this image of merriman in a book that was privately published by merriman's church in 1930. and there's only a few copies left in the world. and i found it and i thought, this is just a brilliant version of 19th century photoshop. and i thought, photoshop has really improved over the last 150 years and i wanted to have some fun with it myself. and so i did that to it. i sent this to my editor at lsu press and said -- and she loved it so much she said do you think we can get a blurb for the back of the book? and i'm still waiting on that, i haven't gotten anything yet. but i figured this was at least a good endorsement. if this sort of stuff interests you, i actually have put together a facebook page where i have a lot of images related to the merriman arrest and other arrests during the civil war. facebook/civilwartreason. and you can actually see a few of them here. i have jefferson davis here. we're going to talk more about jefferson davis in a couple of weeks and his treason trial.

when davis was arrested union troops were catching up with him, they caught up with him in georgia in 1865. his wife allegedly threw her shawl over his head and then when the soldiers were closing in said, my mother here is very afraid, can i take her away from all this commotion and all the guns? and davis was a tall man and he had big feet with spurs on his shoes and one of the union soldiers apparently looked down and saw his feet and said, them boots don't belong to a woman, and they picked up the shawl, and there was the confederate president. now, the north had a field day with this. they printed dozens of images of the confederate president dressed in drag. he was not dressed like a woman but the north pretended like he was. you can see a few of them here. you can see his bodice. here you can see him wearing a little cap over his head and he's got a dress on. but if you're interested in seeing more pictures of

jefferson davis as a woman, you can see them there. okay. let's talk about some of the readings that you guys did for today. if you have those, please pull them out. let's start with taney. what are some of taney's criticisms of the arrest and imprisonment of john merriman? what are some of his arguments? as always, if you can point us to a particular part in the text and read it, a sentence or two, or a short paragraph, please do so so that we can hear the words and engage with them. why does taney think that merriman's arrest was illegal? ashley? >> he said that only congress, not the president, had the power to suspend the writ. >> good. only congress. why is it that taney makes that argument? frank?

>> in article 1, section 9, it doesn't say the president can do it, and since it's in article 1, he said it's a congress power so it belongs to congress only. >> good. article 1 of the constitution generally has to do with congress. no, there's a few exceptions, but article 1 has been generally seen to be the article dealing with congress. and so if the suspension clause is there, then it must be a congressional power. and he points out that most legal thinkers from the founding era to the present, present being 1861, although even to the present today, say that, no, this is a legislative power, not a presidential power. what else does he say? how does he portray the president, the presidency? >> he portrays the presidency like a military government. he's saying that the president is now causing martial law and

that his powers have greatly outnumbered the constitution and that there's no checks or ability to stop them. >> yeah, the president is acting unlawfully, instituting martial law or military law, and the rights of civilians are at stake. how does he think the president should act? did anyone pick up on this? frank? >> he blames -- he cites section 3, article 2. that he shall take care. he said you should follow the laws as they are, not take power over it. follow the constitution as written. >> good, follow the constitution as it's written. let's look at that section there, it's on page 34, the left-hand column here. the second full paragraph there. and the only power therefore which the president possesses where the life, liberty or property of a private citizen is concerned, is the power and duty prescribed in the third section

of the second article that frank just mentioned which requires that he shall take care that the laws be faithfully executed. he is not authorized to execute them himself or through agents or officers, civil or military, appointed by himself. but he is to take care that they be faithfully executed or faithfully carried into execution as they are expounded and ajudged by the coordinate branch of the government to which that duty is assigned by the constitution. it is thus made his duty to come in aid of the judicial authority. if it shall be resisted by a force too strong to be overcome without the assistance of the executive arm. what is taney arguing about the nature of the presidency there? what is the role of the president, according to taney? frank? >> it's the judicial and the congressional branches. it's like a subordinate role in which he carries out their will

rather than carrying out his own will. >> yeah, it's a subordinate position. to assist judges, if the judge tries to prosecute someone, or the if the judge is presiding over a prosecution and the marshal goals out to arrest the person and the marshal can't do it, then the president should send in the military to assist him. what do you guys make of that argument? yeah? >> it's an odd argument because in the constitution itself it doesn't list so much powers to the judicial branch. even judicial review isn't mention. he's asserting things that aren't in the constitution and claims the president shouldn't do that. so contradictory. >> good. molly? >> the constitution was sort of written on the idea of three equal branches of government with checks and balances that no one can become more powerful than the other. so it doesn't really make sense for him to be claiming that one is less powerful than the others. >> good. anything else? that jumps out at you from that?

approximately well, how does lincoln respond? now, we've got two different responses from lincoln. the one is from a message to congress on july 4th, 1861. and the other is the letter to erastus corps i uchlt schlus co. >> in his letter to corning on page 308 he said, i think the time not unlikely to come when i should be blamed for having too few arrests rather than too many. so he argued that if he wasn't -- if he had like less arrests, other people would be upset with him because i guess there are people who are threatening the union that he was just let going on. >> good, yeah. he says, if i'd arrested the military commanders of the confederate army and navy before the war began, we could have cut this thing short. it could be over by now. we wouldn't have hundreds of thousands of deaths. maybe i arrested too few people rather than too many.

what else does lincoln argue? >> page 38, he makes the case that every law but one should be violated. so in order to hold the entire constitution, if one has to be violated, it seems odd to not do that and let the whole thing perish. >> yeah. what's going on in that clause? molly? >> never mind. >> we'll come back to you. let's look at this. page 38. towards the middle of the first paragraph. the whole of the laws which were required to be faithfully executed were being resisted and failing of execution in nearly one-third of the states. must they all be allowed to finally fail of execution? even if it had been perfectly clear that by the use of the means necessary to their execution, some single law made in such extreme tenderness of the citizen's liberty, that

practically it relieves more of the guilty than the innocent? should to a very limited extent be violated? that's complex language and lincoln knew it. so he says, to state the question more directly, are all the laws but one to go unexecuted? and the government itself to go to pieces, lest that one be violated? what's he saying? taylor? >> preservation of the union and the constitution, if we have to violate one law to keep the rest of the country going, then it's okay. >> yeah. what do you guys make of that argument? if it's necessary to violate one law, it's okay. if it means preserving the union. do you sacrifice some things that might be unconstitutional to do, do you sacrifice them in order to save the union? mary? >> definitely, like we do that all time, we see in times of war like us being -- like censoring

ourselves, like for example it's done throughout our history just to preserve our nation. >> i was going to say, at the same time it's not even -- like it is a state's constitutional right to leave if they feel oppressed by government. i think he's kind of like injecting his own opinion, saying that we're saving the constitution as a whole, but that wording wasn't even exactly in the constitution. so i don't know, i don't necessarily agree. >> you don't agree. what else? david? >> starts out with one, stops it from going to two, to three, to why don't they ignore all the laws. >> what do you guys think? is this a dangerous argument? is it a slippery slope? >> looking at rome, caesar was appointed by the senate, then he suspended it and took all the power for himself in the name of helping rome. so that leads to a tyrannical government. >> lincoln argues in the corning letter, this is only during the war.

once we get to after the war, of course i'll stop doing these measures. yeah, katherine? >> on that same line, lincoln made it very clear with a lot of his actions that he had them, was taking use of them, because of the war. things he wouldn't normally do like emancipation of slaves. he said he declared that under war powers, that he could not do that normally. he made that very clear throughout his presidency. >> he hinges all his actions on the suspension clause. when in cases of rebellion or invasion. so that's every time. i mean, he must quote that three or four times in the corning letter. chris? >> i don't think what he did was necessarily wrong, the only thing he could have broken was that he suspended the writ instead of degrees. the writ should have got suspended anyway because it was totally undermining the war effort. if the rebellions kept taking place in maryland. >> let's talk about that for a second. congress was out of session in april 1861. they were not scheduled to come back until december of 1861. now, lincoln, when he called out

for the troops in april, said, i want congress to meet on july fourth and have a session this summer. what do you guys think? did lincoln act rightly, because congress want around and it took congress a long time to make a decision anyway? is the president uniquely qualified to make a decision like this or should he summoned congress earlier to make the decisions? >> i think it absolutely makes more sense for the president to have this power. i mean, it took congress two years to make the law that basically justified what the president did. but that's two years of the war, the war had one year left. but like it -- congress can't act quickly enough and it's not practical for them, especially in 1861, to be called back sooner because they can't necessarily get there that quickly. >> they don't have planes flying into reagan national airport in d.c. >> right. it will take them longer to get there, it takes them longer to act. it doesn't make logical sense for it to be part of congress.

>> jill, what do you think? >> i think that lincoln thought, well, a lot of people thought that the clause was kind of vague as to who it -- particularly who could say suspend the writ. >> why that is? >> it's kind of like the treason, where sometimes it's broad and sometimes it's narrow.