The military arrest of Clement L. Vallandigham, a Democratic member of Congress from Ohio, for incendiary language denouncing the draft, also grew to an important incident.  Arrested and tried under the orders of General Burnside, a military commission found him guilty of having violated General Order No. 38, by “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”; and sentenced him to military confinement during the war.  Judge Leavitt of the United States Circuit Court denied a writ of habeas corpus in the case.  President Lincoln regretted the arrest, but felt it imprudent to annul the action of the general and the military tribunal.  Conforming to a clause of Burnside’s order, he modified the sentence by sending Vallandigham south beyond the Union military lines.  The affair created a great sensation, and, in a spirit of party protest, the Ohio Democrats unanimously nominated Vallandigham for governor.  Vallandigham went to Richmond, held a conference with the Confederate authorities, and, by way of Bermuda, went to Canada, from whence he issued a political address.  The Democrats of both Ohio and New York took up the political and legal discussion with great heat, and sent imposing committees to present long addresses to the President on the affair.

Mr. Lincoln made long written replies to both addresses of which only so much needs quoting here as concisely states his interpretation of his authority to suspend the privilege of the writ of habeas corpus: 

“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 personal 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.”

Forcible and convincing as was this legal analysis, a single sympathetic phrase of the President’s reply had a much greater popular effect: 

“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?”