Now Mr. Vallandigham had been a member of Congress since 1856, and was
at present a prominent candidate for any office which the Democrats of
his State or of the United States might be able to fill; he was the
popular and rising leader of the Copperhead wing of the Democracy. Such
was his position that it would have been ignominious for him to allow
any Union general to put a military gag in his mouth. Nor did he. On the
contrary, he made speeches which at that time might well have made
Unionists mad with rage, and which still seem to have gone far beyond
the limit of disloyalty which any government could safely tolerate.
Therefore on May 4 he was arrested by a company of soldiers, brought to
Cincinnati, and thrown into jail. His friends gathered in anger, and a
riot was narrowly avoided. At once, by order of General Burnside, he was
tried by a military commission. He was charged with "publicly expressing
sympathy for those in arms against the government of the United States,
and declaring disloyal sentiments and opinions, with the object and
purpose of weakening the power of the government in its efforts to
suppress an unlawful rebellion." Specifications were drawn from a speech
delivered by him on or about May 1. The evidence conclusively sustained
the indictment, and the officers promptly pronounced him guilty,
whereupon he was sentenced by Burnside to confinement in Fort Warren. An
effort to obtain his release by a writ of habeas corpus was ineffectual.

The rapidity of these proceedings had taken every one by surprise. But
the Democrats throughout the North, rapidly surveying the situation,
seized the opportunity which perhaps had been too inconsiderately given
them. The country rang with plausible outcries and high-sounding oratory
concerning military usurpation, violation of the Constitution, and
stifling freedom of speech. It was painfully obvious that this
combination of rhetoric and argument troubled the minds of many
well-affected persons. If the President had been consulted in the
outset, it is thought by some that he would not have allowed matters to
proceed so far. Soon afterward, in his reply to the New York Democrats,
he said: "In my own discretion, I do not know whether I would have
ordered the arrest of Mr. Vallandigham." On the other hand, Mr. Blaine
states that Burnside "undoubtedly had confidential instructions in
regard to the mode of dealing with the rising tide of disloyalty which,
beginning in O