In 1862, a partisan character began to be attached to the arrests. It was charged that many were arrested purely on account of politics. In some of the Western States these arrests influenced the elections of the year. In Ohio, an old man of seventy, Dr. Edson B. Olds, formerly a member of the United States House of Representatives for six years,was arrested and taken from his home at night and sent to Fort Lafayette, charged with discouraging enlistments in the army. During his detention in prison he was nominated and elected to the State legislature. In New Jersey, a Democratic legislature sent to the United States Senate James W. Wall, who had been arrested and confined in Fort Lafayette the previous year, apparently for his criticism of the administration in the newspapers with which he was connected. Following the election, in which the administration party suffered heavy losses, Secretary Stanton issued an order releasing all persons who had been arrested for discouraging enlistments. Many of the strongest friends of the administration felt that the policy of miscellaneous arrests should end. Justice Benjamin R. Curtis, who had written a minority opinion in the Dred Scott case while a member of the Supreme Court of the United States, on October 18, 1862, published a pamphlet in opposition to the course of President Lincoln, even taking the ground that he had no right to issue the forthcoming emancipation proclamation, and criticizing the exercise of arbitrary power. As a result of all these things taken together, Congress passed an act, which was approved on March 3, 1863, authorizing the President to suspend the writ of habeas corpus whenever in his judgment it should be necessary. The act further directed that the Secretary of State and the Secretary of War must furnish to the United States courts a list of political prisoners confined by their order, and that thereafter the judges must discharge all prisoners against whom the grand jury would find no indictment. This statute, however, as we shall see, was not strictly observed, but was set at naught by the appointment of military commissions by army commanders.
The most famous arrest of this kind during the war was that of Clement L. Vallandigham, then a member of Congress from Ohio. General A. E. Burnside, in command of the Department of Ohio, issued, on April 13, 1863, his General Order No. 38, declaring that "the habit of declaring sympathies for the enemy will not be allowed." Two subordinate officers attended a political meeting at Mount Vernon, Ohio, May 1, 1863, at which Vallandigham spoke, for the purpose of securing evidence. Upon reading their notes, General Burnside ordered the arrest of Vallandigham, which was accomplished at half-past two on the morning of May 5th. A commission of army officers immediately proceeded to try him, and on May 7th be was found guilty " of publicly expressing . . . . sympathies for those in arms against the Government of the United States," and " declaring disloyal sentiments."
The commission sentenced him to close confinement during the war, and General Burnside approved the sentence May 16th and ordered him sent to Fort Warren. Though President Lincoln and a number of his cabinet bad not approved the arrest, the action of the commission was not reversed, but the sentence was changed to banishment within the limits of the Confederacy. His presence in the South might easily have become a source of embarrassment to the Confederacy, and was the occasion of some concern. The authorities, however, decided that the provisions of the " Alien Enemies' Act," of which we shall speak hereafter, should be put into effect. On arrival, Vallandigham was formally asked whether he claimed to be a loyal citizen of the United States. Upon his affirmative answer he was courteously informed that he was to be sent to Wilmington for deportation. Escaping through the blockade, he went to Canada but soon reappeared in Ohio and was not molested.
Comparatively early in the war vague rumors of a secret society, or societies, opposed to the administration became prevalent. They were supposed to extend through the Confederacy as well as through the Northern States, and the members were pledged to do all in their power to hamper the prosecution of the war. These societies were known as Knights of the Golden Circle, Order of American Knights, or more briefly, 0.A.K., the Corps de Belgique, and by various other names.Many detectives were set to work to discover the secrets of the organizations and the names of the members. Numerous reports were made, some of them based upon the evidence of informers in the order, some of them upon rumors.
All of these organizations late in 1863 or early in 1864 were apparently consolidated under the name, Sons of Liberty, though in some sections the old names continued. The membership in the Middle West, particularly in the States of Ohio, Indiana, Illinois, Kentucky, and Missouri, was quite large, and some of the members undoubtedly contemplated secession from the Union and the formation of a Northwestern Confederacy. A plot to assist the Confederate officials in Canada to release the Confederate prisoners held at Johnson's Island, Camp Chase, Camp Morton, and Camp Douglas had among its principals some members of the Sons of Liberty. The leaders of the Democratic party, to which, naturally, the larger portion of the membership belonged, discountenanced all violence or active disloyalty, though Vallandigham was supposed to be the supreme commander of the order in 1864. The influence of this organization in discouraging enlistments and creating resistance to the draft was considerable.
The most important arrest in connection with the Sons of Liberty was that of Colonel Lambdin P. Milligan, whose case is important also in that it settled definitely certain disputed questions in Constitutional law. This individual was a lawyer and politician in Indiana, who was arrested October 5, 1864, by order of General A. P. Hovey, commanding the District of Indiana, and taken to Indianapolis, where he was confined. A military commission composed of army officers was appointed by General Hovey for trial of Milligan and several associates, under the charges of conspiring against the Government of the United States, inciting insurrection, and otherwise violating the law, but the chief specification in all the charges was their membership in the Sons of Liberty. The commission found the prisoners guilty as charged, December 18th, and sentenced them to death. The findings were approved by the district and department commanders, but President Lincoln did not issue the order, without which sentence could not be carried into effect.
After President Lincoln's assassination, however, President Johnson approved the sentence and May 19, 1865, was designated as the date of execution. The sentence of one of the prisoners, Horsey, was, however, commuted to imprisonment for life, and Milligan and Bowles were reprieved until the 2d of June. Just before this day, through the influence of Governor Morton, the sentences were commuted to imprisonment f or life. Meanwhile, Colonel Milligan had appealed to the Supreme Court of the United States, which took up the case and finally decided April 3, 1866, that " a military commission in a State not invaded . . . in which the Federal courts were open . . . . had no jurisdiction to try, convict, or sentence for any criminal offense a citizen who was neither a resident of a rebellious State, nor a prisoner of war, nor a person not in the military or naval service." Among the other points decided was that the suspension of the privilege of the writ of habeas corpus did not suspend the writ itself. This case was important, as according to it hundreds of trials by military commission in the loyal States were invalid.
How many persons were thus arrested and imprisoned without warrant during the course of the war cannot now be settled with any degree of accuracy, according to the statement of General F. C. Ainsworth, when chief of the Record and Pension Office. The records of the Federal commissary-general of prisoners from February, 1862, until the close of the war show that 13,535 citizens were arrested and confined under various charges. General Ainsworth is certain, however, that many arrests, possibly several thousand, were made by military commanders or provost-marshals, and were not reported to the commissary-general of prisoners.
Contrary to the usual opinion, arrests without warrant were less frequent in the Confederate than in the United States. President Davis did not assume the right to suspend the writ of habeas corpus, and this privilege was grudgingly granted him by the Confederate Congress for limited periods only and with important limitations.
In the beginning the larger number of arrests was made under what was known as the " Alien Enemies Act." This act of the Confederate Congress approved by the President, August 8, 1861, provided that " all natives, citizens or denizens, or subjects of the hostile Nation or Government . . . shall be liable to be apprehended, restrained or secured, and removed as alien enemies." The President of the Confederacy was authorized to issue a proclamation to carry this act into effect. Accordingly, all residents of other States adhering to the Union were ordered to depart within forty days, subject only to the provision that they should not be allowed to cross the lines at such times and places as would result in their giving information to the Federals.
A commission consisting of two citizens, John Randolph Tucker and James Lyon, was appointed on August 30th, on the suggestion of General J. H. Winder, who wrote to the Secretary of War on the 26th of August that he believed that many prisoners who had been arrested should be discharged. The commissioners at once entered on their work and a general jail delivery ensued. Military officers were also instructed to obey the writs of habeas corpus, and if the judge ordered the discharge of the prisoner, to obey, though they might then appeal to the Confederate district judge.
The attitude of the officers of the Government was not in accord with that in operation in Washington, for on January 5, 1862, Secretary Benjamin wrote to General J. E. Johnston protesting against his sending prisoners arrested on suspicion to Richmond. " They come here without definite charges against them, without any proof or witnesses, and I am utterly powerless to hold them for you." Secretary Seddon further says, in 1863, in response to a Congressional resolution: " No arrests have been made at any time by any specific order or direction of this department. The persons arrested have been taken either by officers of the army commanding in the field or by provost-marshals exercising authority of a similar nature, and the ground for arrest is, or ought to be, founded upon some necessity, or be justified as a proper precaution against an apparent danger."
The jealousy of arbitrary power characteristic of the Southerner was shown by the attitude of the Confederate Congress, the governors, and legislatures, which opposed any curtailment of the power of the courts. Though it was evident that a more expeditious method was desirable in certain cases' a resolution authorizing the President to suspend the writ was not passed until February 27, 1862.
This action was limited the following April, and it was provided that the act should expire thirty days after the beginning of the session of the next Congress. The act was renewed on the 13th of October, 1862, and the period was extended until the 12th of February, 1863. The writ was not again suspended until February, 1864, when the Confederate Congress did so in the case of prisoners whose arrest was authorized by the President or the Secretary of War. This act expired on the 2d of August, 1864, and was never reenacted, though President Davis recommended its continuance.
No complete lists of arbitrary arrests in the Confederacy are in existence, and we are able only to find a name here and there in the records. From the excitement caused by the arrests under the act for the suspension of the writ of habeas corpus, it would appear that they were comparatively few. Some of the governors, as Governor Vance, of North Carolina, and Governor Brown, of Georgia, were much aroused over the arrest and detention of some of their citizens, and, in heated correspondence with the War Department, claimed that the rights of the States were in peril.
