CHAPTER XII
ARBITRARY ARRESTS
The jaunty manner in which Secretary Seward administered the laws respecting the liberty of the citizen in the earlier years of the war is treated by John Hay with a humorous touch under date October 22, 1861:
To-day Deputy Marshal came and asked what he should do with process to be served on Porter in contempt business. I took him over to Seward and Seward said: "The President instructs you that the habeas corpus is suspended in this city at present, and forbids you to serve any process upon any officer here." Turning to me: "That is what the President says, is it not, Mr. Hay?" "Precisely his words," I replied; and the thing was done.65
Prior to the assembling of Congress in July, 1861, the President had given to General Winfield Scott authority in writing to suspend the privilege of the writ of habeas corpus at any point on the line of the movement of troops between Philadelphia and Washington City. Without other authority Seward began to issue orders for the arrest and imprisonment of persons suspected of disloyal acts or designs, not only on the line between Philadelphia and Washington City, but in all parts of the country.
When the special session of Congress began, Senator Wilson, Chairman of the Committee on Military Affairs, introduced a joint resolution to declare these and other acts of the President "legal and valid to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States." The clause of the Constitution which says that the privilege of the writ of habeas corpus shall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it, does not say in what mode, or by what authority, it may be suspended.
Straightway there were differences of opinion as to the lodgment of the power to suspend, whether it was in the executive or in the legislative branch of the Government. Other differences cropped up as to the phraseology of the Wilson Resolution and its legal intendment. It might be construed as an affirmance by Congress that the President's act suspending the writ was lawful at the time when he did it, or, on the other hand, that it became lawful only after Congress had so voted, and hence was unlawful before. These diversities of opinion were very tenaciously held by different members of the Senate and House, of equal standing in the legal profession. The result was that Wilson's joint resolution was debated at great length, but did not pass. Instead of it an amendment was added to one of the military bills declaring that all acts, proclamations, and orders of the President after the 4th of March, 1861, respecting the army and navy, should stand approved and legalized as if they had had the previous express authority of Congress; and the bill was passed as amended. This was understood to be a mere makeshift for the time being.
The general question was again brought to the attention of Congress by Trumbull, December 12, 1861, when he introduced in the Senate the following resolution:
Resolved, that the Secretary of State be directed to inform the Senate whether, in the loyal states of the Union, any person or persons have been arrested by orders from him or his department; and if so, under what law said arrests have been made and said persons imprisoned.
When this resolution came up for consideration (December 16), Senator Dixon, of Connecticut, objected strongly to it. He thought that it was unnecessary and unwise, and that it could result in nothing advantageous to the cause of the Union. Some of the persons referred to, he said, had been arrested in his own state. They had manifested their treasonable purposes by attempting to institute a series of peace meetings, so-called, by which they hoped to debauch the public mind under false pretense of restoring peaceful relations between the North and the South. The Secretary of State had put a sudden stop to their treasonable designs by arresting and imprisoning one or more of them. He contended that the Secretary had done precisely the right thing, at precisely the right time, and had nipped treason in Connecticut in the bud. The only criticism which loyal citizens had to make of his doings was that he had not arrested a greater number. If there had been any error on the part of the Executive, it had been on the side of lenity and indulgence. He, Dixon, would not vote for an inquiry into the legality of such arrests because they found their justification in the dire necessity of the time.
Trumbull asked how the Senator knew that the persons arrested were traitors. Who was to decide that question? If people were to be arrested and imprisoned indefinitely, without any charges filed against them, without examination, without an opportunity to reply, at the click of the telegraph, in localities where the courts were open, far from the theatre of war, such acts were the very essence of despotism. The only purpose of making the inquiry was to regulate these proceedings by law. If additional legislation was necessary to put down treason or punish rebel sympathizers in Connecticut, or in any other loyal state, he (Trumbull) was ready to give it, but he was not willing to sanction lawlessness on the part of public officials on the plea of necessity. He denied the necessity. The principle contended for by the Senator from Connecticut would justify mobs, riots, anarchy. He understood that some of the parties arrested had been discharged without trial and he asked if Mr. Dixon justified that. Then the following ensued:
Mr. Dixon. I do.
Mr. Trumbull. Then the Senator justifies putting innocent men in prison. Else why were they discharged? I take it that was the reason for their discharge. I have heard of such cases.
Mr. Dixon. They ought to be discharged, then.
Mr. Trumbull. They ought to be discharged, and they ought to be arrested, too. An innocent man ought to be arrested, put into prison, and by and by discharged. Sir, that is not my idea of individual or constitutional liberty. I am engaged, and the people whom I represent are engaged, in the maintenance of the Constitution and the rights of the citizens under it. We are fighting for the Government as our fathers made it. The Constitution is broad enough to put down this rebellion without any violations of it. I do not apprehend that the present Executive of the United States will assume despotic powers. He is the last man to do it. I know that his whole heart is engaged in endeavoring to crush this rebellion, and I know that he would be the last man to overturn the Constitution in doing it. But, sir, we may not always have the same person at the head of our affairs. We may have a man of very different character, and what we are doing to-day will become a precedent upon which he will act. Suppose that when the trouble existed in Kansas, a few years ago, the then President of the United States had thought proper to arrest the Senator or myself, and send him or me to prison without examination, without opportunity to answer, because in his opinion we were dangerous to the peace of the country, and the necessity justified it. What would the Senator have thought of such action?
The debate lasted the whole day. Senators Hale, Fessenden, Kennedy, and Pearce, of Maryland, supported the resolution. Senators Wilson, of Massachusetts, and Browning, of Illinois, opposed it.
Read in the light of the present day the arguments of the opposition are extremely flimsy. They said in effect: "We know that our rulers mean well; if we ask them any questions, we shall cast a doubt upon their acts and then the wicked will be encouraged in their wrongdoing, and treason will multiply in the land." It was Trumbull's opinion that arbitrary arrests were causing division and dissension among the loyal people of the North, and were thus doing more harm than good, even from the standpoint of their apologists. Democratic conventions censured them. That of Indiana, for example, resolved:
That the total disregard of the writ of habeas corpus by the authorities over us and the seizure and imprisonment of the citizens of the loyal states where the judiciary is in full operation, without warrant of law and without assigning any cause, or giving the party arrested any opportunity of defense, are flagrant violations of the Constitution, and most alarming acts of usurpation of power, which should receive the stern rebuke of every lover of his country, and of every man who prizes the security and blessings of life, liberty, and property.
At the close of the debate, Senator Doolittle moved to refer the resolutions to the Committee on the Judiciary, in order to have a report on the question whether the right to suspend the writ of habeas corpus appertains to the President or to Congress. This motion was opposed by Trumbull, but it prevailed by a vote of 25 to 17, and the subject was shelved for six months.
The question upon which Senator Doolittle wanted information had already been decided, so far as one eminent jurist could decide it, in the case of John Merryman, a citizen of Maryland, who was arrested at his home in the middle of the night on the 25th of May, 1861. He applied to Chief Justice Taney for a writ directing General Cadwalader, the commandant of Fort McHenry, to produce him in court, on the ground that he had been arrested contrary to the Constitution and laws of the United States. He stated that he had been taken from his bed at midnight by an armed force pretending to act under military orders from some person to him unknown.
The Chief Justice issued his writ and General Cadwalader sent his regrets by Colonel Lee, saying that the prisoner was charged with various acts of treason and that the arrest was made by order of General Keim, who was not within the limits of his command. He said further that he was authorized by the President of the United States to suspend the writ of habeas corpus for the public safety. He requested that further action be postponed until he could receive additional instructions from the President.
Judge Taney thereupon issued an attachment against General Cadwalader for disobedience to the high writ of the court. The next day United States Marshal Bonifant certified that he sent in his name from the outer gate of the fort, which he was not permitted to enter, and that the messenger returned with the reply that there was no answer to his card, and that he was thereupon unable to serve the writ. The Chief Justice then read from manuscript as follows:
1. The President, under the Constitution and laws of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so.
2. A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offense against the laws of the United States, except in aid of the judicial authority and subject to its control, and if the party is arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority to be dealt with according to law.
The Chief Justice then remarked orally that if the party named in the attachment were before the court he should fine and imprison him, but that it was useless to attempt to enforce his legal authority, and he should, therefore, call upon the President of the United States to perform his constitutional duty and enforce the process of the court.
July 8, 1862, the House, after a brief debate, passed a bill reported by its Judiciary Committee directing the Secretaries of State and of War to report to the judges of the courts of the United States the names of all persons held as political prisoners, residing in the jurisdiction of said judges, and providing for their prompt release unless the grand jury should find indictments against them during the first term of court thereafter. The bill also authorized the President, during any recess of Congress, to suspend the privilege of the writ of habeas corpus throughout the United States, or any part thereof, in cases of rebellion, or invasion, where the public safety might require it, until the meeting of Congress. Mr. Bingham, of Ohio, who reported the bill, explained that the committee did not attempt to decide whether the right to suspend the writ of habeas corpus was vested in the executive or in the legislative branch of the Government. That was a matter of dispute, and the bill was intended to settle doubts, not theoretically but practically. If the right belonged to the Executive under the Constitution the passage of the bill would do no harm; if it belonged to Congress the bill would enable the President to exercise it legally. A motion to lay the bill on the table was negatived by a vote of 29 to 89, after which it was passed without a division.
July 15, Trumbull reported this bill from the Judiciary Committee of the Senate with a recommendation that it pass. It was opposed vigorously by Wilson, of Massachusetts, who called it a general jail delivery for the benefit of traitors. He moved to strike out all of it except the section which authorized the President to suspend the privilege of the writ of habeas corpus. This motion was rejected by a majority of one, but the session came to an end on the following day without a final vote on the passage of the bill.
In the meantime President Lincoln had seen fit to transfer the license of making arbitrary arrests from the Secretary of State to the Secretary of War. The change was no betterment, however, for, where Seward had previously chastised the suspected ones with whips, Stanton now chastised them with scorpions. Arbitrary arrests became more numerous and arbitrary than before. A special bureau was created for them under charge of an officer styled the Provost Marshal of the War Department.
In the ensuing political campaign the Democrats made the greatest possible use of the issue thus presented, and they showed large gains in the congressional elections in the autumn of 1862. They carried New York, New Jersey, Pennsylvania, Ohio, Indiana, Illinois, and Wisconsin. Horatio Seymour was elected governor of the Empire State, and William A. Richardson (Democrat) was chosen by the legislature of Illinois as Senator in place of Browning, who was filling the vacancy caused by the death of Senator Douglas. It is impossible to say how much influence the arbitrary arrests had in producing these results, but it is certain that the Republican leaders were alarmed. Stanton fell into a panic. The general jail delivery apprehended by Wilson took place by a stroke of Stanton's pen on the 22d of November, without waiting for the final vote on Trumbull's bill, and Wilson himself voted for the bill.
In the House, Thaddeus Stevens introduced a bill to indemnify the President and all persons acting under his authority for arrests and imprisonments previously made. This was passed under the previous question, December 8, unfairly and without debate.
When Congress reassembled in December, Trumbull called up the House bill and offered a substitute for it. He held that under the Constitution Congress must authorize and regulate the suspension of the writ of habeas corpus. He would not, however, limit the exercise of the executive power to the time of meeting of the next Congress, as the House bill provided. His substitute proposed that the suspension of the writ should be left to the discretion of the President as to time and place during the continuance of the rebellion, but that political prisoners should not be held indefinitely without knowing the charges against them. The second section provided that lists of all prisoners of this class in the loyal states should be furnished, within twenty days, to the courts of the respective districts and laid before the grand juries with a statement of the charges against them, and if no indictments should be found against them during that term of court they should be discharged upon taking an oath of allegiance to the United States, and (if required by the judge) giving a bond for good behavior. Future arrests for political offenses were to be regulated in like manner. Collamer moved to strike out the second section, but failed by two votes.
Republican resistance to this measure now ceased and the rôle of opposition was taken up by the Democrats. Powell, of Kentucky, contended that the power to suspend the writ of habeas corpus was lodged in Congress exclusively and could not be delegated to the President. He raised the objection also that there was no definition of the phrase "political offenses." Trumbull agreed to strike out that phrase altogether, in which case the President would have the power to suspend the writ for all offenses, and could determine for himself which ones were political and which were non-political. As to the right of Congress to delegate its own powers to the President in analogous cases, he cited the power to borrow money, the power to grant letters of marque and reprisal, and the power to call forth the militia, all of which were lodged in Congress, but which Congress never exercised directly, but only by delegating its powers to the Executive.
Senator Carlile, of Virginia, held that the writ of habeas corpus ought never to be suspended in places where the courts were open. Trumbull replied that if it were not suspended in those places it could never be suspended at all, for if there were no courts open, the writ itself could not be issued. Yet the Constitution clearly contemplated the necessity of suspending it in certain conditions where it actually existed.
February 23, 1863, Trumbull's substitute was agreed to by yeas 25, nays 12, and the bill was passed by 24 to 13. All of the negative votes, except two, were cast by Democrats.
February 27, the Senate took up the Stevens House bill to indemnify the President and adopted a substitute proposed by Trumbull. The substitute was not adopted by the House, but a conference was asked for and agreed to by the Senate. The conferees decided to consolidate into one act the Indemnity Bill and the Habeas Corpus Bill, which was still pending between the two houses. The report of the Conference Committee was presented to the Senate by Trumbull on March 2, one day before the end of the Thirty-seventh Congress.
Except the financial bills, this was the most important measure of the session, and the one about which the most heat had been engendered. On the 24th of September, 1862, the President had proclaimed martial law throughout the nation as to persons discouraging enlistments or resisting the Conscription Act and had suspended the writ of habeas corpus as to such persons. On the 1st of January following, he had issued the Emancipation Proclamation, of which he had given preliminary notice one hundred days before. These measures were extremely distasteful to the Democrats and especially so to those of the border slave states. The pending measure was intended to condone all former arbitrary arrests and to sanction an indefinite number in the future, although providing for speedy trials.
When the report was presented, Powell, of Kentucky, moved to postpone it till the following day. Trumbull would not agree to any postponement unless there was an understanding on both sides that a vote should be taken within a limited time. It was finally agreed between himself and Bayard, of Delaware, that it should be postponed until seven o'clock in the evening, with the understanding that there should be no filibustering on the measure. The postponement was to be for debate and discussion only. "So far as I know, or can learn, or believe," said Bayard, "it is delay for no other purpose." Powell was present when this colloquy took place and he neither affirmed nor denied. Trumbull took it to be an agreement between the two political parties.
The debate began with a speech from Senator Wall (Democrat), of New Jersey, who held the floor till midnight, when Saulsbury, of Delaware, moved that the Senate adjourn. The motion was negatived by 5 to 31. Powell moved that the bill be laid upon the table. This was negatived without a division. Then Powell began a speech against the bill. At 12.40 a.m., Richardson moved that the Senate adjourn; negatived by 5 to 30. Powell continued his speech and became involved in a running debate with Cowan, of Pennsylvania, who took the floor after Powell had finished and made a speech, apparently unpremeditated, but nevertheless a great speech, going to the foundation of things and showing that the Administration must be sustained in this crisis, since otherwise the fabric of self-government in the United States would perish. He did not say that he approved of, or condoned, arbitrary arrests in the loyal states. All his implications were to the contrary, but he insisted that those who would save the country and ward off chaos and anarchy could not pause now to contend with each other on the issue whether the President had the right to suspend the writ of habeas corpus or whether Congress had it. He said that he observed signs, on the Democratic side, of filibustering against the bill, and he thought that such tactics were unjustifiable and highly dangerous. His argument carried the greater force because of his habitual conservatism. While it did not, perhaps, change any votes, it probably dampened the resistance of the Northern Democrats to the bill.
When Cowan had concluded, Powell took the floor to reply. At 1.53 a.m., Bayard interrupted him with a motion to adjourn, which was negatived by 4 to 35. Powell resumed his speech and made a much longer one than his first, at the end of which he moved an adjournment, negatived by 4 to 32. Then Bayard made a long speech against the bill. He finished at 5 o'clock and Powell made another motion to adjourn, which was negatived, 4 to 18, no quorum voting.
Some confusion followed the disclosure of the absence of a quorum. Several motions were made and withdrawn, and finally Fessenden called for the yeas and nays on Powell's motion to adjourn. In the mean time a quorum had been drummed up and the roll-call showed 4 yeas to 33 nays. There was considerable noise and confusion on the floor when the result was announced and the presiding officer (Pomeroy, of Kansas) said quickly:
The question is on concurring in the report of the Committee of Conference. Those in favor of concurring in the report will say "aye"; those opposed, "no." The ayes have it. It is a vote. The report is concurred in.
Trumbull instantly moved to take up a bill from the House relating to public grounds in Washington City, and his motion was agreed to. Then Powell wanted to go on with the Indemnity Bill and was informed by Grimes that it had already passed. He denied that it had passed and called for the yeas and nays. Trumbull claimed the floor and his claim was sustained by the chair. Powell called it a piece of "jockeying." After some further recrimination the Senate adjourned.
On reassembling, the question whether the bill had passed or not was again taken up. The Senate Journal showed that it had passed, and the question arose on a motion to correct the Journal. In the debate which ensued it was proved that the presiding officer did actually put the motion in the words quoted above; that, of the four Democrats who voted on the last roll-call, none heard it; that the Democrats were in fact filibustering against the bill, or at all events that Powell was doing so, for he avowed that he had intended to defeat it by any means in his power. On the other hand, there is no doubt that the passage of the bill was accomplished by the sharp practice of Pomeroy; but it was damnum absque injuria, snap judgment being no worse than filibustering. Moreover, there is evidence that of the thirteen Democratic Senators, only four or five were really determined to kill the bill at all hazards. All except that number absented themselves from the night session, while all or nearly all the Republicans remained in their places.
The Conference Report was concurred in on the 2d of March and the bill was approved by the President on the following day. We may infer, therefore, that the power to suspend the writ of habeas corpus resides in the legislative branch of the Government, of which the President is a part, and that Congress may delegate its powers to the President and prescribe conditions and limitations to its exercise.
No legislation more wholesome was enacted during the war period. No act of the period was more precise and lucid and less equivocal in its terms. Yet within two months it was grossly violated by the banishment of Clement L. Vallandigham, an ex-member of Congress from Ohio.
Vallandigham was the incarnation of Copperheadism. I heard his speech of January 14, 1863, in the House, in which he discharged all the pro-slavery virus that he had been collecting from his boyhood days. As a public speaker he had no attractions, but rather, as it seemed to me, the tone and front of a fallen angel defying the Almighty. There was neither humor nor persuasion nor conciliation in his make-up. He was cold as ice and hard as iron. Although born and bred in a free state, he avowed himself a pro-slavery man. In the speech referred to he took two hours to prove the following propositions: (1) That the Southern Confederacy never could be conquered; (2) that the Union never could be restored by war; (3) that it could be restored by peace; (4) that whatever else might happen, African slavery would be "fifty-fold stronger" at the end of the war than it had been at the beginning.
General Ambrose E. Burnside, after his defeat at Fredericksburg, had been sent to take command of the Department of the Ohio. Vallandigham was now seeking the nomination of his party for governor of Ohio, and his chances of success were not flattering until Burnside caused him to be arrested for alleged treasonable utterances in a speech delivered at the town of Mount Vernon on the 1st day of May, 1863. He was taken out of his bed at Dayton in the night and carried to Cincinnati, put in a military prison, tried by a military commission, found guilty, and sentenced to close confinement in Fort Warren during the continuance of the war. President Lincoln commuted his sentence to banishment to the Southern Confederacy. He was accordingly sent across the army lines and handed over to his supposed friends, who did not, however, receive him with any touching marks of affection.
Under the Act of Congress approved March 3, 1863, it was the duty of the Secretary of War within twenty days to report the arrest of Vallandigham to the judge of the United States District Court for southern Ohio, with a statement of the charges against him, in order that they might be laid before the grand jury, and if an indictment were found against him, to bring him to trial; and if no indictment were found during that term of court, to discharge him from confinement. Any officer, civil or military, holding a prisoner in contravention of that act was guilty of a misdemeanor and liable to a fine of not less than five hundred dollars and to imprisonment in the common jail not less than six months. Accordingly, all the proceedings in the case of Vallandigham subsequent to his arrest were unwarranted and lawless. The arrest itself was, perhaps, permissible under the act, because the President had the right to suspend the writ of habeas corpus. When Vallandigham applied for the writ, Judge Leavitt refused it on that ground. The refusal of the writ, however, did not justify the later proceedings.
The military trial of Vallandigham and his subsequent banishment led to vehement protests from Northern Democrats, which, in the light of the present day, seem not unreasonable. President Lincoln replied at great length and on the whole successfully to one such protest which came from a committee of citizens of New York, of which Erastus Corning was chairman. He did not fare so well in a later controversy with a committee of the Ohio Democratic State Convention, who visited the Executive Mansion and submitted their protest in writing under date of June 26. In this communication they covered the same ground as the New York men and added these words:
And finally, the charge and the specifications on which Mr. Vallandigham was tried entitled him to a trial before the civil tribunals according to the express provisions of the late acts of Congress approved by yourself July 17, 1862, and March 3, 1863.
Mr. Lincoln replied to everything in the protest of the Ohio men except this paragraph. His failure to reply on this point gave them the opportunity to retort that his answer was "a mere evasion of the grave questions involved." This is the only instance in Mr. Lincoln's controversial writings, so far as I can discover, where such a retort seems justified. The correspondence is published in Appleton's Annual Cyclopædia, 1863.
The New York Tribune deprecated, in no querulous tone, but in moderate and dignified language, the entire proceedings in Vallandigham's case, and deemed them not helpful to the cause of the Union, but the contrary.
Vallandigham was not the kind of man to win public sympathy, even for his misfortunes. Moreover, his transference to the society that he was supposed to be most fond of (as an alternative to close confinement in Fort Warren) had a flavor of jocularity that dulled the edge of criticism; but his strength in his own party was vastly augmented by these proceedings. He was nominated for governor by acclamation, and would probably have been elected had not the victories at Gettysburg and Vicksburg, two months later, withdrawn attention from him, inspired the Unionists with new enthusiasm, and correspondingly depressed their opponents.
Burnside, finding himself sustained by his superiors in doctoring Copperheadism in Ohio, enlarged the scope of his practice. On the 1st of June he issued an order forbidding the circulation of the New York World in his department and stopping the publication of the Chicago Times. Brigadier-General Ammen was charged with the execution of the latter order. On the following day, Ammen notified Wilbur F. Storey, the editor of the Times, that he would not be allowed to issue his paper on the 3d of June. Storey appealed to the United States District Court for protection. Shortly after midnight Judge Drummond issued a writ directing the military authorities to take no further steps under Burnside's order to suppress the Times until the application for a permanent writ of injunction could be heard in open court. The judge said: