The court took the matter under advisement and in the afternoon decided to hear the argument on the application and directed the clerk to notify Major-General Burnside that the hearing would be had on Monday, May 11.
On the opening of the court, May 11, Hon. Aaron F. Perry and District Attorney Ball appeared for General Burnside and Honorable George E. Pugh appeared for Mr. Vallandigham.
The district attorney presented to the court the following:
HEADQUARTERS DEPARTMENT OF THE OHIO,
Cincinnati, Ohio, May 11, 1863.
To the honorable the Circuit Court of the United States within and for the Southern District of Ohio:
The undersigned, commanding the Department of the Ohio, having received notice from the clerk of said court that an application for the allowance of await of habeas corpus will be made this morning before your honors on behalf of Clement L. Vallandigham, now a prisoner in my custody, asks leave to submit to the court the following statement:
If I were to indulge in wholesale criticism of the policy of the Government it would demoralize the army under my command and every friend of his country would call me a traitor. If the officers or soldiers were to indulge in such criticisms it would weaken the army to the extent of their influence, and if this criticism were universal in the army it would cause it to be broken to pieces, the Government to be divided, our homes to be invaded and anarchy to reign. My duty to my Government forbids meto indulge in such criticisms; officers and soldiers are not allowed so to indulge, and this course will be sustained by all honest men.
Now I will go further. We are in a state of civil war. One of the States of this department is at this moment invaded and three others have been threatened. I command the department and it is my duty to my country and to this army to keep it in the best possible condition; to see that it is fed, clad, armed and as far as possible to see that it is encouraged. If it is my duty and the duty of the troops to avoid saying anything that would weaken the army be preventing a single recruit from joining the ranks, by bringing the laws of Congress into disrepute or by satisfaction in the ranks it is equally the duty of every citizen in the department to avoid the same evil. If it is my duty to prevent the propagation of this evil in the army or in a portion of my department it is equally my duty in all portions of it, and it is my duty to use all the force in my power to stop it.
If I were to find a man from the enemy's country distributing in my camps speeches of their public men that tended to demoralize the troops or to destroy their confidence in the constituted authorities of the Government I would have him tried and hung if found guilty, and all the rules of modern warfare would sustain me. Why should such speeches from our own public men be allowed?
The press and public men in a great emergency like the present should avoid the use of party epithets and bitter invectives and discourage the organization of secret political societies which are always undignified and disgraceful to a free people, but now they are absolutely wrong and injurious; they create dissensions and discord which just now amount to treason. The simple names "patriot" and "traitor" are comprehensive enough.
As I before said we are in a state of civil war and an emergency is upon us which requires the operations of some power that moves more quickly than the civil.
There never was a war carried on successfully without the exercise of that power.
It is said that the speeches which are condemned have been made in the presence of large bodies of citizens who if they thought them wrong would have then and there condemned them. That is no argument. These citizens do not realize the effect upon the Army of our country who are its defenders. They have never been in the field, never faced the enemies of their country, never undergone the privations of our soldiers in the field and besides they have been in the habit of hearing their public men speak and as a general thing of approving of what they say; therefore the greater responsibility rests upon the public men and upon the public proves them to be careful as to what they say. They must not use license and plead that they are exercising liberty. In this department it cannot be done. I shall use all the power I have to break down such license and I am sure I will be sustained in this course by all honest men. At all events I will have the consciousness before God of having done my duty to my country, and when I am swerved from the performance of that duty by any pressure, public or private, or by any prejudice I will no longer be a man or a patriot.
I again assert that every power I possess on earth or that is given me from above will be used in defense of my Government on all occasions, at all times and in all