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Henry J. (Henry Jarvis) Raymond.

History of the administration of President Lincoln : including his speeches, letters, addresses, proclamations, and messages. With a preliminary sketch of his life online

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Online LibraryHenry J. (Henry Jarvis) RaymondHistory of the administration of President Lincoln : including his speeches, letters, addresses, proclamations, and messages. With a preliminary sketch of his life → online text (page 31 of 46)
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pend the writ of habeas corpus, and to remove from the
vicinity of the United States fortresses all dangerous or sus
pected persons." This was the first act of the Administration
in that direction ; but it was very soon found necessary to
resort to the exercise of the same powers in other sections of
the country. On the 25th of May, John Merryman, a resident
of llayfield, in Baltimore County, Maryland, known by the
Government to be in communication with the rebels, and to
be giving them aid and comfort, was arrested and imprisoned
in Fort McHenry, then commanded by General Cadwallader.
On the same day lie forwarde d a petition to Roger B. Taney,
Chief-Justice of the United States, reciting the circumstances
of his arrest, and praying for the issue of the writ of habeas
corpus. The writ was forthwith issued, and General Cadwal
lader was ordered to bring the body of Merryman before the
Chief-Justice on the 27th. On that day Colonel Lee pre
sented a written communication from General Cadwallader,
stating that Merryman had been arrested, and committed to
his custody by officers acting under the authority of the
United States, charged with various acts of treason, with
holding a commission as lieutenant in a company avowing its
purpose of armed hostility against the Government, and with
having made often and unreserved declarations of his associa
tion with this armed force, and of his readiness to co-operate with
those engaged in the present rebellion against the Government
of the United States. The General added that he was " duly
authorized by the President of the United States to suspend



342

the writ of habeas corpus for the public safety ;" and that,
while he fully appreciated the delicacy of the trust, he was also
instructed " that, in times of civil strife, errors, if any, should
be on the side of safety to the country." The commanding
General accordingly declined to obey the writ, whereupon an
attachment was forthwith issued against him for contempt of
court, made returnable at noon on the next day. On that
day, the marshal charged with serving the attachment made
return that he was not admitted within the fortress, and had
consequently been unable to serve the writ. The Chief-Jus
tice, thereupon, read an opinion that the President could not
suspend the writ of habeas corpus, nor authorize any military
officer to do so, and that a military officer had no right to
arrest any person, not subject to the rules and articles of war,
for an offence against the laws of the United States, except in
aid of the judicial authority, and subject to its control. The
Chief-Justice stated further, that the marshal had the power to
summon out the posse comitatus to enforce, the service of the
writ, but as it was apparent that it would be resisted by a force
notoriously superior, the Court could do nothing further in the
premises.

On the 12th of May, another writ was issued by Judge
Giles, of Baltimore, to Major Morris, of the United States
Artillery, at Fort McHcnry, who, in a letter dated the 14th,
refused to obey the writ, because at the time it was issued,
and for two weeks previous, the city of Baltimore had been
completely under the control of the rebel authorities United
States soldiers had been murdered in the streets the intention
to capture that fort had been openly proclaimed, and the
Legislature of the State was at that moment debating the
question of making war upon the Government of the United
States. All this, in his judgment, constituted a case of
rebellion, and afforded sufficient legal cause for suspend
ing the writ of habeas corpus. Similar cases arose, and



AID AND COMFORT TO THE REBELS. 343

were disposed of in a similar manner, in other sections of the
country.

The Governor of Virginia had proposed to Mr. G. Heincken,
of New York, the agent of the New York and Virginia Steam
ship Company, payment for two steamers of that line, the
Yorktown and Jamestown, which he had seized for the rebel
service, an acceptance of which proffer, Mr. Heincken was in
formed, would be treated as an act of treason to the Govern
ment ; and on his application, Mr. Seward, the Secretary of
State, gave him the following reasons for this decision :

An insurrection has broken out in several of the States of this Union,
including Virginia, designed to overthrow the Government of the
United States. The executive authorities of that State are parties to
that insurrection, and so are public enemies. Their action in seizing or
buying vessels to be employed in executing that design, is not merely
without authority of law, but is treason. It is treason for any person to
give aid and comfort to public enemies. To sell vessels to them which
it is their purpose to use as ships of war, is to give them aid and com
fort. To receive money from them in payment for vessels which they
have seized for those purposes, would be to attempt to convert the un
lawful seizure into a sale, and would subject the party so offending to
the pains and penalties of treason, and the Government would not hesi
tate to bring the offender to punishment.

These acts and decisions of the Government were vehe
mently assailed by the party opponents of the Administration,
and led to the most violent and intemperate assaults upon the
Government in many of the public prmts. Some of these
journals were refused the privilege of the public mails, the
Government not holding itself under any obligation to aid in
circulating assaults upon its own authority, and stringent
restrictions were placed upon the transmission of intelligence
by telegraph. On the 5th of July, 1862, Attorney-General
Bates transmitted to the President an elaborate opinion, pre
pared at his request, upon his power to make arrests of per
sons known to have criminal intercourse with the insurgents,



344

or against whom there is probable cause for suspicion of such
criminal complicity, and also upon his right to refuse to
obey a writ of habeas corpus in case of such arrests. The
Attorney-General discussed the subject at considerable length,
and reached a conclusion favorable to the action of the Gov
ernment. From that time forward the Government exerted,
with vigor and energy, all the power thus placed in its hands
to prevent the rebellion from receiving aid from those in sym
pathy with its objects in the Northern States. A large num
ber of persons, believed to be in complicity with the insur
gents, were placed in arrest, but were released upon taking an
oath of allegiance to the United States. Baltimore continued
for some time to be the head-quarters of conspiracies and
movements of various kinds in aid of the rebellion, and the
arrests were consequently more numerous there than else
where. Indeed, very strenuous efforts were made throughout
the summer to induce some action on the part of the Legisla
ture which should place the State in alliance with the rebel
Confederacy, and it was confidently believed that an ordinance
looking to this end would be passed at the extra session which
was convened for the 17th of September ; but on the 16th
nine secession members of the House of Delegates, with the
officers of both houses, were arrested by General McClellan,
then in command of the army, who expressed his full appro
bation of the proceedings, and the session was not held.

The President at.the time gave the following statement of
his views in regard to these arrests :

The public safety renders it necessary that the grounds of these
arrests should at present be withheld, but at the proper time they will
be made public. Of one thing the people of Maryland may rest as
sured, that no arrest has been made, or will be made, not based on
substantial and unmistakable complicity with those in armed rebellion
against the Government of the United States. In no case has an arrest
been made on mere suspicion, or through personal or partisan animosi-



EXECUTIVE OllDEF. ABOUT ARKESTS. 345

ties, but in all cases the Government is in possession of tangible and
unmistakable evidence, which will, when made public, be satisfactory
to every loyal citizen.

Arrests continued to be made under authority of the
State Department, not without complaint, certainly, from large
numbers of the people, but with the general acquiescence of the
whole community, and beyond all question greatly to the
advantage of the Government and the country. On the 14th
of February, 1862, an order was issued on the subject, which
transferred control of the whole matter to the War Depart
ment. The circumstances which had made these arrests
necessary are stated with so much clearness and force in that
order, that we insert it at length as follows :

EXECUTIVE ORDERS IX RELATION TO STATE PRISONERS.

WAR DEPARTMENT, WASHINGTON, Feb. 14.

The breaking out of a formidable insurrection, based on a conflict of
political ideas, being an event without precedent in the United States,
was necessarily attended by great confusion and perplexity of the pub
lic mind. Disloyalty, before unsuspected, suddenly became bold, and
treason astonished the world by bringing at once into the field military
forces superior in numbers to the standing army of the United States.

Every department of the Government was paralyzed by treason.
Defection appeared in the Senate, in the House of Representatives, in
the Cabinet, in the Federal Courts ; Ministers and Consuls returned
from foreign countries to enter the insurrectionary councils, or land or
naval forces ; commanding and other officers of the army and in the
navy betrayed the councils or deserted their posts for commands in the
insurgent forces. Treason was flagrant in the revenue and in the post-
office service, as well as in the territorial governments and hi the In
dian reserves.

Not only Governors, Judges, Legislators, and ministerial officers in
the States, but even whole States, rushed, one after another, with ap
parent unanimity, into rebellion. The capital was besieged and its con
nection with all the States cut off.

Even in the portions of the country which were most loyal, political
combinations and secret societies were formed furthering the work of
15*



346 PRESIDENT LINCOLN S ADMINISTRATION.

disunion, while, from motives of disloyalty or cupidity, or from excited
passions or perverted sympathies, individuals were found furnishing
men, money, and materials of war and supplies to the insurgents mili
tary and naval forces. Armies, ships, fortifications, navy yards, arse
nals, military posts and garrisons, one after another, were betrayed or
abandoned to the insurgents.

Congress had not anticipated and so had not provided for the emer
gency. The municipal authorities were powerless and inactive. The
judicial machinery seemed as if it had been designed not to sustain the
Government, but to embarrass and betray it.

Foreign intervention, openly invited and industriously instigated by
tho abetters of the insurrection, became imminent, and has only been
prevented by the practice of strict and impartial justice with the most
perfect moderation in our intercourse with nations.

The public mind was alarmed and apprehensive, though fortunately
not distracted or disheartened. It seemed to be doubtful whether the
Federal Government, which one year before had been thought a model
worthy of universal acceptance, had indeed tho ability to defend and
maintain itself.

Some reverses, which perhaps were unavoidable, suffered by newly
levied and inefficient forces, discouraged the loyal, and gave new hopes
to the insurgents. Voluntary enlistments seemed about to cea-se, and
desertions commenced. Parties speculated upon the question whether
conscription had not become necessary to fill up the armies of the United
States.

In this emergency the President felt it his duty to employ with
energy the extraordinary powers which the Constitution confides to him
in cases of insurrection. He called into the field such military and
naval forces, unauthorized by the existing laws, as seemed necessary.
Ho directed measures to prevent tho use of tho post-office for treasona
ble correspondence. He subjected passengers to and from foreign
countries to new passport regulations, and he instituted a blockade,
suspended the writ of habeas corpus in various places, and caused per
sons who were represented to him as being or about to engage in dis
loyal and treasonable practices to be arrested by special civil as well as
military agencies, and detained in military custody, when necessary, to
prevent them and deter others from such practices. Examinations of
such cases were instituted, and some of the persons so arrested have
been discharged from time to time, under circumstances or upon condi
tions compatible, as was thought, with the public safety.



APPOINTMENT OF A COMMISSIONER ON ARRESTS. 347

Meantime a favorable change of public opinion has occurred. The
line between loyalty and disloyalty is plainly defined ; the whole struc
ture of the Government is firm and stable ; apprehensions of public dan
ger and facilities for treasonable practices have diminished with the
passions which prompted heedless persons to adopt them. The insur
rection is believed to have culminated and to be declining.

The President, in view of these facts, and anxious to favor a return
to the normal course of the Administration, as far as regard for the
public welfare will allow, directs that all political prisoners or State
prisoners now held in military custody, be released on their subscribing
to a parole engaging them to render no aid or comfort to the enemies
in hostility to the United States.

The Secretary of War will, however, at his discretion, except from
the effect of this order any persons detained as spies in the service of
the insurgents, or others whose release at the present moment may be
deemed incompatible with the public safety.

To all persons who shall be so released, and who shall keep their
parole, the President grants an amnesty for any past offences of treason
or disloyalty which they may; have committed.

Extraordinary arrests will hereafter be made under the direction of
the military authorities alone.

By order of the President :

EDWIN M. STANTON, Secretary of War.

On the 2 7 tli of the same month, a Commission was ap
pointed by the War Department, consisting of Major-General
Dix and Hon. Edwards Pierrepont, of New York, to examine
into the cases of the State prisoners then remaining in custody,
and to determine whether, in view of the public safety and
the existing rebellion, they should be discharged, or remain
in arrest, or be remitted to the civil tribunals for trial. These
gentlemen entered at once upon the discharge of their duties,
and a large number of prisoners were released from custody
on taking the oath of allegiance. Wherever the public safety
seemed to require it, however, arrests continued to be made
the President, in every instance, assuming all the responsi
bility of these acts, and throwing himself upon the Courts



348 PRESIDENT LINCOLN S ADHLNISTBATION.

and the judgment of tbe country for his vindication. But
the President himself had not up to this time directed any-
general suspension of the writ of habeas corpus, or given any
public notice of the rules by which the Government would be
guided in its action upon cases that might arise. It was left
to the Secretary of War to decide in what instances and for
what causes arrests should be made, and the privilege of the
writ should be suspended. In some of the Courts into which
these cases were brought, the ground was accordingly taken
that, although the President might have authority under
the Constitution, when, in cases of rebellion or invasion,
the public safety should require it, to suspend the writ, he
could not delegate that authority to any subordinate. To
meet this case, therefore, the President, on the 24th of Sep
tember, 1862, issued the following

PROCLAMATION".

Whereas, it has been necessary to call into service, not only volun
teers, but also portions of the militia of the States by draft, in order to
suppress the insurrection existing in the United States, and disloyal
persons are not adequately restrained by the ordinary processes of law
from hindering this measure, and from giving aid and comfort in various
ways to the insurrection,

Now, therefore, be it ordered

First, That during the existing insurrection, and as a necessary
measure for suppressing the same, all rebels and insurgents, their aiders
and abettors, within the United States, and all persons discouraging
volunteer enlistments, resisting military drafts, or guilty of any disloyal
practice affording aid and comfort to the rebels against the authority of
the United States, shall bo subject to martial law, and liable to trial
and punishment by courts-martial or military commission.

Second, That the writ of habeiis corpus is suspended in respect to all
persons arrested, or who are now, or hereafter during the rebellion
shall be, imprisoned in any fort, camp, arsenal, military prison, or other
place of confinement, by any military authority, or by the sentence of
say court-martial or military commission.



OPPOSITION TO THE GOVERNMENT. 349

In witness whereof I have hereunto set my hand and seal, and caused
the seal of the United States to.be affixed.

Done at the city of Washington, this twenty-fourth day
of September, in the year of our Lord one thousand
[L. S.] eight hundred and sixty-two, and of the independence
of the United States the eighty- seventh.

ABRAHAM LKTCOLX.
By the President :

WILLIAM H. SEWAKD, Secretary of State.

This proclamation was accompanied by orders from the
War Department appointing a Provost Marshal-General, whose
head-quarters were to be at Washington, with special provost-
marshals, one or more, in each State, charged with the duty of
arresting deserters and disloyal persons, and of inquiring into
treasonable practices throughout the country. They were
authorized to call upon either the civil or military authority for
aid in the discharge of their duties, and were required to re
port to th.e Department at Washington. The creation of- this
new Department had been made necessary by the increased
activity of the enemies of the Government throughout the
North, and by the degree of success which had attended their
efforts. Prompted partly by merely political and partisan
motives, but in many instances by thorough sympathy with
the secession movement, active political leaders had set in
vigorous motion very extensive machinery for the advance
ment of their designs. "Peace meetings" were held in every
section of the Northern States, at which the action of the
Government was most vehemently assailed, the objects of the
war were misrepresented, and its prosecution denounced, and
special efforts made to prevent enlistments, to promote deser
tions, and in every way to cripple the Government in its
efforts to subdue the rebellion by force of arms. The vigorous
action of the Government, however, in arresting men con
spicuous in these disloyal practices, had created a salutary re-



350 PEESJDENT

action in the public mind, and had so far relieved the Admin
istration from apprehension as to warrant the promulgation of
the following order :

WAR DEPARTMENT, WASHINGTON, Nov. 22, 18G2.
Ordered 1. That all persons now in military custody, who have been
arrested for discouraging volunteer enlistments, opposing the draft, or
for otherwise giving aid and comfort to the enemy, in States where the
draft has been made, or the quota of volunteers and militia has been
furnished, shah 1 be discharged from further military restraint.

2. The persons who, by the authority of the military commander or
governor in rebel States, have been arrested and sent from such State
for disloyalty or hostility to the Government of the United States, and
are now in military custody, may also be discharged upon giving their
parole to do no act of hostility against the Government of the United
States, nor render aid to its enemies. But all such persons shall remain
subject to military surveillance and liable to arrest on breach of their
parole. And if any such persons shall prefer to leave the loyal States
on condition of their not returning again during the war, or until special
leave for that purpose be obtained from the President, then such person
shall, at his option, be released and depart from the United States, or be
conveyed beyond the military lines of the United States forces.

3. This order shall not operate to discharge any person who has been
in arms against the Government, or by force and arms has resisted or
attempted to resist the draft, nor relieve any person from liability to
trial and punishment by civil tribunals, or by court-martial or military
commission, who may be amenable to such tribunals for offences com
mitted.

By order of the Secretary of War :

E. D. TOWNSEND, Assistant Adjutant- General.

During the succeeding winter, while Congress was in
session, public sentiment was comparatively at rest on this
subject. Congress had enacted a law, sanctioning the action
of the President in suspending the writ of habeas corpus,
and clothing him with full authority to check and punish all
attempts to defeat the efforts of the Government in the prose
cution of the war. After the adjournment, however, when the
political activity of the country was transferred from the



THE CASE OF YALLANDIGHAM. 351

Capital to the people in their respective localities, the party
agitation was revived, and public meetings were again held to
denounce the conduct of the Government, and to protest
against the further prosecution of the war. One of the most
active of these advocates of peace with the rebel Confederacy
was Hon. C. L. Vallaudigham, a member of Congress from
Ohio, who had steadily opposed all measures for the prosecu
tion of the war throughout the session. After the adjourn
ment he made a political canvass of his district, and in a
speech at Mount Vernon, on the 1st of May, he denounced the
Government at Washington as aiming, in the conduct of tho
war, not to restore the Union, but to crush out liberty and es
tablish a despotism. He declared that the war was waged for
the freedom of the blacks and the enslaving of the whites
that the Government could have had peace long before if it
had desired it that the mediation of France ought to have
been accepted, and that the Government ad deliberately re
jected propositions by which the Southern States could have
been brought back to the Union. lie also denounced an
order, No. 38, issued by General Burnside, in command of the
Department, forbidding certain disloyal pra-ctices, and giving
notice that persons declaring sympathy for the enejmy would be
arrested for trial, proclaimed his intention to disobey it, and
called on the people who he"ard him to resist and defeat its
execution.

For this speech Mr. Vallandigham was arrested, by order of
General Burnside, on the 4th of May, and ordered for trial
before a court-martial at Cincinnati. On the 5th, he applied,
through his counsel, Senator Pugh, to the Circuit Court of the
United States for a writ of habeas corpus. In reply to this
application, a letter was read from General Burnside, setting
forth the considerations which had led him to make the arrest,
and Vallandigham s counsel was then heard in a very long argu
ment on the case. Judge Stewart pronounced his decision,



352 PRESIDENT LINCOLN S ADMINISTRATION.

refusing the writ, on the ground that the action of General
Burnside was necessary for the public safety. "The legality
of the arrest," said the judge, " depends upon the extent of
the necessity for making it, and that was to be determined by
the military commander." And he adds :

Men should know and lay the truth to heart, that there is a course of
conduct not involving ovc.t treason, and not therefore subject to pun
ishment as such, which, nevertheless, implies moral guilt, and a gross
offence against the country. Those who live under the protection and
enjoy the blessings of our benignant Government, must learn that they
cannot stab its vitals with impunity. If they cherish hatred and hos
tility to it, and desire its subversion, let them withdraw from its juris
diction, and seek the fellowship and protection of those with whom
they are in sympathy. If they remain with us, while they are not of
us. they must be subject to such a course of dealing as the great law of
self-preservation prescribes and will enforce. And let them not com
plain if the stringent doctrine of military necessity should find them to



Online LibraryHenry J. (Henry Jarvis) RaymondHistory of the administration of President Lincoln : including his speeches, letters, addresses, proclamations, and messages. With a preliminary sketch of his life → online text (page 31 of 46)