There are several points to be made here:
Indeed, those usual wartime restrictions on free speech are one reason Congress has been so reluctant to officially declare a war since WWII.
By 1864 Vallandigham openly attended the Democrat convention in Chicago, and was put on the Democrat ticket as Secretary of War!
Such a punishment for treason.
As for Indiana Governor King's remarks about:
This happens whenever Republicans are in charge, regardless of whether Dems have some legitimate excuse or not.
The problem is, if one believes that something is necessary to save the country and the Constitution, one tends not to see it as unconstitutional.
During wartime such "free speech" falls under Article 3, Section 3 of the US Constitution:
"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."
That’s a serious charge. Did Vallandigham levy war against the United States? No, at least not at this time.
Did he adhere to the enemies of the United States? No, he did not support two separate countries, and he argued for the return of the Southern states under the Constitution as it had been before the war. He argued that Lincoln had changed the objective of the war from preserving the Union to freeing the slaves. Vallandigham was for the former objective.
Did Vallandigham give the enemies of the United States aid and comfort? Actually in his speech that got him arrested he had pointed out that the Richmond Enquirer newspaper, which he called a Jeff Davis’ organ, had wanted Vallandigham and two others thrown in prison because of their doing so much against Southern recognition and independence.
In a post above I had recommended that you look at Vallandigham’s military trial for what he said in the May 1, 1863 speech for which he was arrested and for which he was being tried. Here is a link to the trial testimony: Vallandigham trial
Specifications against Vallandigham at trial
SPECIFICATION.
In this, that the said Clement L. Vallandigham, a citizen of the State of Ohio, on or about the first day of May, 1863, at Mount Vernon, Knox County, Ohio, did publicly address a large meeting of citizens, and did utter sentiments in words, or in effect, as follows, declaring the present war “ a wicked, cruel, and unnecessary war;” “ a war not being waged for the preservation of the Union;” “ a war for the purpose of crushing out liberty and erecting a despotism;” “ a war for the freedom of the blacks and the enslavement of the whites;” stating “ that if the Administration had so wished, the war could have been honorably terminated months ago; ‘ that “ peace might have been honorably obtained by listening to the proposed intermediation of France;” that “ propositions by which the Northern States could be won back, and the South guaranteed their rights under the Constitution, had been rejected the day before the late battle of Fredericksburg, by Lincoln and his minions,” meaning thereby the President of the United States, and those under him in authority; charging “ that the Government of the United States was about to appoint military marshals in every district, to re-strain the people of their liberties, to deprive them of their rights and privileges;” characterizing General Orders No. 38, from Headquarters Department of the Ohio, as “ a base usurpation of arbitrary authority,” inviting his hearers to resist the same, by saying, “ the sooner the people inform the minions of usurped power that they will not submit to such restrictions upon their liberties, the better;” declaring “ that he was at all times, and upon all occasions, resolved to do what he could to defeat the attempts now being made to build up a monarchy upon the ruins of our free government;” asserting “ that he firmly believed, as he said six months ago, that the men in power are attempting to establish a despotism in this country, more cruel and more oppressive than ever existed before.”
All of which opinions and sentiments he well knew did aid, comfort, and encourage those in arms against the Government, and could but induce in his hearers a distrust of their own Government, sympathy for those in arms against it, and a disposition to resist the laws of the land.
During the trial, Vallandigham personally cross examined the prosecution’s witnesses. They were military officers who had heard Vallandigham’s speech for which Vallandigham had been arrested. Here’s are some excerpts from the trial. Vallandigham asks the questions, and the prosecution witnesses respond :
Burnside’s General Orders No. 38 Link
Q.- Referring to General Orders No. 38, did I not say that, in so far as it undertook to subject citizens not in the land or naval forces or militia of the United States, in actual service, to trial by court-martial or military commission, I believed it to be unconstitutional, and a usurpation of arbitrary power?.
A.-He did, except the words “ in so far.”
I will note at this point that Vallandigham is in agreement with the later unanimous Ex Parte Milligan decision of the US Supreme Court, and he was in agreement with Indiana Governor Morton who said in his letter to Lincoln that Burnsides General Order 38 was against the law passed by Congress for areas not in insurrection and that the whole business of the trial was illegal.
Where military trials are justified
Q.-Referring to two citizens of Kentucky tried, by Military Court in Cincinnati, did I not say that what they were charged with was actual treason, punishable by death, and that, if guilty, the penalty by statute was hanging, and they ought to be hung, after being tried by a judicial court and a jury-instead of which they had been tried by a military court, as I understood, and sentenced to fine and imprisonment-one of them a fine of three hundred dollars?
A.-That was, in substance, what he said. …
Q.-Did I not also say, in that connection, that the rebel officer who was tried as a spy by the Military Court at Cincinnati was legally and properly tried and convicted, according to the rules and articles of war; that that was a clear case where the Court had jurisdiction?
A.-It is my recollection that he denounced the Court as an unlawful tribunal, and that he did use the above language, and then gave the instances referred to in my direct testimony. He probably did refer to Campbell’s case.
Then the Judge Advocate speaks up.
The Judge-Advocate stated that the accused did distinguish in his speech the different cases for the purpose of showing jurisdiction, condemning those cases in which he held the Court to have no jurisdiction, and approving the case of the spy.
Support for the Union
Q.-Did I not expressly refer to myself in that connection, and say that I had refused, and always would refuse, to agree to a separation of the States-in other words, to peace, on terms of disunion?
A.-He stated something to that effect. He stated that he wished to have a voice in the manner in which the Union was to be reconstructed, and that he wished also our Southern brethren to have a voice.
Q.- Did I not distinctly, in the conclusion of the speech, enjoin upon the people to stand by the Union at all events, and that, if war failed, not to give the Union up; to try, by peaceable means, by compromise, to restore it as our fathers made it, and that though others might consent, or be forced to consent, I would not myself be one of those who would take any part in agreeing to a dissolution of the Union?
A.-Yes. He said he and the peace men were the only ones who wished the restoration of the Union.
Jeff Davis Someone in the audience at the May 1, 1863, speech had shouted out that Jeff Davis was a gentleman. The prosecutor asked the following question of a witness:
Q.-Did you hear many, and how many, cheering for Jeff Davis, or expressing sympathy for him?
A.-I heard no cheers for Jeff Davis, but I heard a shout in the crowd, that “ Jeff Davis was a gentleman, and that was what the President was not.”
Vallandigham asked the witness in cross examination:
Q.-Do you mean to be understood to say that I heard the reference to Jeff Davis, or gave any assent to it whatever?
A.-I can not say that he did. It was said loud enough for him to hear, if his attention had been directed that way. He gave no assent; neither did he give any dissent.
Vallandigham produced a defense witness, an old friend of General Burnside and co-speaker at the May 1 meeting. He remembered an occasion where Vallandigham had denounced applause for Jeff Davis:
Q.-Do you remember any rebuke, in connection with the Butler County case, of men who hurrahed for “ Jeff Davis?”
A.--Yes, I do. He denounced the applause of Davis.
Against Resistance to Military or Civil Law and for Use of the Ballot Box
Q.-You say that I said that I would not counsel resistance to military or civil laws. Did I not expressly counsel the people to obey the Constitution and all laws, and to pay proper respect to men in authority, but to maintain their political rights’ through the ballot-box, and to redress personal wrongs through the judicial tribunals of the country, and in that way put down the Administration and all usurpations of power?
A.-He said, at the last of his speech, to come up united at the ballot-box and hurl the tyrant from his throne. I did not understand him to counsel the people to submit to the authorities at all times. I do not remember the language as stated, but part of it I remember.
From Vallandigham’s defense witness:
A.-I can not say as to his “ strongest language,” for he always speaks pretty strongly. He denounced, in strong language, any usurpations of power to stop public discussions and the suffrage. He appealed to the people to protect their rights, as a remedy for every grievance of a private nature. He counseled no resistance except such as might be had at the ballot-box.
Q.-Was any thing said by him at all looking to forcible resistance of either laws or military orders?
A.-Not as I understand it. He stated the sole remedy to be in the ballot-box, and in the courts. I remember this distinctly, for I had been pursuing the same line of remark at Chicago and Fort Wayne, and other places where I had been speaking, and with the purpose of repressing any tendency toward violence among our Democratic people.
Conscription Testimony of a prosecution witness:
That he [Valladigham] would not counsel resistance to military or civil law; that was not needed. That a people were unworthy to be freemen who would submit to such encroachments on their liberties. He was then speaking of the conscription act.
He closed by warning the people not to be deceived. That “ an attempt would shortly be made to enforce the conscription act; “ that “ they should remember that this war was not a war for the preservation of the Union; that “ it was a wicked Abolition war, and that if those in authority were allowed to accomplish their purposes, the people would be deprived of their liberties, and a monarchy established; but that, as for him, he was resolved that he would never be a priest to minister upon the altar upon which his country was being sacrificed.”
Testimony of Vallandigham’s defense witness
Q.-Was any thing said by me on that occasion in denunciation of the conscription bill, or looking in any way to resistance to it?
A.-My best recollection is that Mr. Vallandigham did not say a word about the conscription.
Q.-Did he refer to the French conscription bill, and, if not, was such reference made, and by whom?
A.-He did not. I did.
The prosecution witness said that Vallandigham talked about conscription. Let's assume that he did and urged using the ballot box to fight against it. Is that not the right procedure if you are against a conscription law?
This brings to mind the objections of Georgia Governor Brown to Confederate conscription: See: Link. IIRC, Brown made a huge number of Georgia militia members officers so that they could not be conscripted into the Confederate Army. Brown was not arrested.
Lincoln and war Testimony by prosecution witness about what Vallandigham said in his speech:
That in less than one month Mr. Lincoln had plunged the country into this cruel, bloody, and unnecessary war.
Lincoln told the Senate he had nothing important to tell them so they could adjourn, which they did. He did this on the same day he had a secret draft order written to send a battle fleet down to Fort Sumter. His own generals and cabinet told him sending such a fleet down to Fort Sumter would start a shooting war. It did.
Despotism and description of the war Testimony of prosecution witness
After finishing his exordium, he spoke of the designs of those in power being to erect a despotism; that “ it was not their intention to effect a restoration of the Union; that previous to the bloody battle of Fredericksburg an attempt was made to stay this wicked, cruel, and unnecessary war.” That the war could have been ended in February last. That, a day or two before the battle of Fredericksburg, a proposition had been made for the readmission of Southern Senators into the United States Congress, and that the refusal was still in existence over the President’s own signature, which would be made public as soon as the ban of secrecy enjoined by the President was removed.
Cross examination by Vallandigham
Q.-In speaking of the character of the war, did I not expressly say, as Mr. Lincoln, in his proclamation, July 1, 1862, said: “ This unnecessary and injurious civil war? “
A.-I do not recollect that he did. The language he made use of I understood to be his own.
Lincoln started tossing people in prison for expressing their opinion, assumed powers delegated in the Constitution to Congress, assumed the powers of the judiciary by ignoring a legal order against his action by the Chief Justice of the Supreme Court and started using military courts to try people in states not in insurrection and where the civil courts were functioning, interfered with the electoral process (his troops struck Democrats off the ballot in some locations and prevented know supporters of secession from voting in other areas) arrested state legislators in Maryland to prevent them from voting on secession, threw out the legally elected state government in Missouri, instigated a shooting war by sending a battle fleet to Fort Sumter.
If you were president back then, would you have arrested me for saying that such actions were leading to a despotism and the solution was not resistance to military and civil law but the use of the ballot box to vote such a president out?