The Provost-Marshal and the Citizen

by Holland Thompson

     No graver question was ever considered by this court; nor one which more nearly concerns the rights of the whole people; for it is a birth-right of every American citizen charged with crime to be tried and punished according to law. . . . If there was a law to justify the military trial it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. Decision United States Supreme Court, ex parte Milligan.

     WHEN General McClellan assumed the chief command of the United States forces in the East, he devoted his undoubted talents for organization and a considerable part of his time to the definition of the duties of staff-officers of his command. In the performance of this task he assigned to a provost-marshal-general “a class of duties which had not before in our service been defined and grouped under the management of a special department.” Among these duties were the suppression of marauding and the depredations on private property, the preservation of good order, the prevention of straggling, the suppression of gambling houses or other establishments prejudicial to good order and discipline, and the supervision of hotels, saloons, and places of resort and amusement generally. To this officer was also entrusted the duty of making searches, seizures, and arrests, the custody of deserters from the opposing forces and of prisoners of war, the issuance of passes to citizens, and the hearing of complaints of citizens.

     From this long list of important duties it is obvious that the provost-marshal partook of the character both of a chief of police and of a magistrate. When an army was actively engaged in the field, the first class of duties was the more important. But since provost-marshals were appointed for every military department, though no active warfare was in progress within its limits and they assumed the right to arrest citizens on suspicion and confine them without trial, very often the magisterial side of the office was uppermost.

     Not all the military commanders viewed the activity of these officers with satisfaction. General Schofield, while commanding in Missouri, quotes with approval the statement of General S. R. Curtis that the “creation of the so-called provost-marshal invented a spurious military officer which has embarrassed the service.... Everybody appoints provost-marshals and these officers seem to exercise plenary powers.” General Schofield goes on to say that these officers are “entirely independent of all commanders except the commander of the department, and hence of necessity pretty much independent of them.”

     The provost-marshals in a department had, or assumed, powers depending in extent somewhat upon the character of the commander. No position in the service demanded greater discretion and sounder judgment. Some of the officers appointed, both civilian and soldier, displayed unusual tact and decision, while others were both obstinate and arbitrary. Perhaps it was too much to expect that all of the hundreds of deputies appointed should be men able to impress their personality and enforce the laws without friction.

     While all of the duties mentioned above were important, it is chiefly with the provost-marshal acting under his authority to make searches, seizures, and arrests of the premises, property, and persons of citizens that we are chiefly concerned in this chapter. The action of the provost-marshal brought to a consciousness of the citizen the fact that war existed as did that of no other officer. Later, the supervision of the draft was placed in charge of the provost-marshal-general at Washington, who had no other duties, and the incidents and events occurring in the discharge of this duty were interesting and exciting, though they do not fall within the scope of this volume.

     During the month of April, 1861, all was in confusion in Washington. Senators and representatives in Congress had left their seats, and others were expected to follow their States; occupants of the bench were leaving their court rooms; officers of the army and navy were daily offering their resignations; several members of the diplomatic corps were reported to be on their way home to cast their lot with the Confederacy; many subordinate officials of the Government were resigning, and others were suspected of holding their positions more that they might effectively serve the new Government than because of the sentiment of loyalty. Public sentiment in Washington was inclined to be pro-Southern in the early days of Lincoln's administration. The passage of troops through Baltimore for the defense of Washington was resisted by force. Maryland and Kentucky were hoping to preserve neutrality during the coming contest. No one knew what a day might bring forth.

     To add to the confusion, thousands who had no sympathy with secession doubted the Constitutional right of coercion and openly expressed their opposition to such a course. Suspicion and ill-feeling were prevalent, since the attitude of many thousands toward the Union was a matter of uncertainty. Spies and informers developed in such numbers as to remind one of the days of later Rome. Into the ears of the Government officials a constant stream of suspicion was poured. As a result the arrest of hundreds was ordered without warrants on the simple order from the State or War Department, chiefly the former. Some typical orders read as follows:

“Arrest W. H. Winder and send him to Fort Lafayette, New York.

                         “W. H. SEWARD, Secretary of State.”

 

“Arrest man referred to in your letter of the 11th and send him to Fort Lafayette.

                         “SIMON CAMERON, Secretary of War.”

Military commanders were soon authorized to exercise the same power, and the provost-marshals followed.

     Naturally the prisoners at once sought relief through the writ of habeas corpus and demanded a hearing that they might be permitted to hear the charges against them. The provision of the Constitution of the United States in regard to the right of this writ is as follows, “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.” During the whole period from the adoption of the Constitution until 1861 there seems to be no case “in which an American citizen was arrested without warrant, imprisoned without a charge preferred, and released after months and years of incarceration without trial.” It had been common judgment of Constitutional lawyers that only Congress had the right to suspend this writ, though the necessity for such action had never arisen.

     President Lincoln, however, very early had claimed the right to suspend the writ by his own authority. On April 27, 1861, he authorized General Scott to suspend the right anywhere on, or in the vicinity of, the military line between Washington and Philadelphia. The line was extended to New York on July 2d, and to Bangor, Maine, on October 11th. The commanders of prisons were instructed to refuse to allow themselves to be served with writs, and if service had been secured, either to decline to appear, or to appear and courteously refuse to carry out the instruction of the court.

     A test case was that of John Merryman, who was arrested on the charge of treason, May 25, 1861. Chief Justice Taney of the United States Supreme Court issued a writ of habeas corpus to which General Cadwalader refused to respond. As no posse could execute the writ by force, Justice Taney ordered a copy sent to the President, who was advised by the attorney-general that he had the power to suspend the writ whenever he deemed it necessary, and that this was a part of the war-powers granted by the Constitution.

     So much excitement was caused by some of these arrests that the House of Representatives in special session, July 12, 1861, asked for information regarding them, and for a copy of the opinion of the attorney-general sustaining the right of the President or his subordinates to order such arrests. No action was taken, however, at this time. From the frequency with which these arrests were made on the order of the State Department grew the alleged statement of Secretary Seward to Lord Lyons, the British minister: “My Lord, I can touch a bell on my right hand and order the arrest of a citizen of Ohio. I can touch a bell again and order the imprisonment of a citizen in New York. And no power on earth except that of the President can release them. Can the Queen of England do so much?”

     This statement, though often quoted, does not appear in any of the published correspondence or papers of Secretary Seward, and it is improbable that it was ever made in these precise words. However, it does express definitely and clearly the actual condition of affairs during the first year of the war. On February 14, 1862, according to the proclamation of President Lincoln, the custody of all prisoners of state was transferred from the Department of State to that of War, and only the latter department was thereafter authorized to make arrests. Secretary Stanton, on the same day, issued an order directing that “all political prisoners or state prisoners now held in military custody be released on their subscribing 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, in his discretion except . . . others whose release at the present moment may be deemed incompatible with the public safety. . . . Extraordinary arrests will hereafter be made under the direction of the military authorities alone.”

     In some cases commissions of two, one a soldier the other a civilian, were authorized to hear the cases ex parte and report. General John A. Dix and Edwards Pierrepont examined the prisoners in Forts Lafayette and Warren in the early part of 1862 and recommended the discharge of a considerable number, as no charges whatever had been made against them. These were generally discharged upon taking the oath of allegiance to the United States. Many, however, refused to take the oath, saying that though no charges had been brought against them, such action would be in effect a confession of guilt. For example, Charles Howard; his son, Francis Key Howard, Henry M. Warfield, and other Baltimore prisoners remained in confinement until they were released without conditions, though release on taking an oath had been previously offered.

     The policy of arbitrary arrests was extensively employed to crush out secession sentiment in Maryland. The mayor of Baltimore, the chief of police, and the entire board of police commissioners of the city were arrested, not as a result of their action in the Baltimore riots of April 19, 1861, where they seem to have done their best to protect the Sixth Massachusetts regiment, but because their opposition to the passage of further troops through Baltimore was deemed seditious, and their sympathies were supposed to be with the South. Many members of the Maryland legislature were also arrested on and after September 20, 1861, and confined first in Fort McHenry, then in Fort Lafayette, and finally in Fort Warren, in order to forestall the passage of an act of secession. Some of these were soon released after taking the oath of allegiance, but several were confined for months. A number of arrests were also made through the rural counties of Maryland, and out of these grew one of the most interesting cases of the war.

     Richard B. Carmichael, a judge of the State court, was a man of courage, devoted to his profession, and almost fanatical in his belief in the supremacy of the law and the strict construction of the Constitution. In 1861, he charged the grand juries of his circuit that these arrests were unlawful and that it was the duty of that body to return indictments against those responsible. His charge, which followed closely the reasoning of Chief Justice Taney in the Merryman case, was published in the newspapers and received a wide circulation. In the spring term of 1862, while on the bench at Easton, he was arrested by J. L. McPhail, deputy provost-marshal of Baltimore.

     Refusing to recognize the authority of the provost-marshal, and resisting arrest, he was taken by force and beaten about the head and face. After confinement for a time in Fort McHenry, he was transferred to Fort Lafayette, and then to Fort Delaware. He constantly demanded that he be furnished with a copy of the charges against him or be brought to trial. Neither was ever done, but he was unconditionally released on December 4, 1862, and as his place on the bench had not been filled, he returned to his duties. Undaunted by his experiences; he again charged the grand jury to bring indictments against the instruments of these arrests, but the vigorous action of the United States authorities had convinced the people that opposition was useless, and the grand jury returned no indictments. Judge Carmichael, disappointed at this lack of spirit, resigned his position and retired to his farm.

     Another case of interest was that of Mrs. Rose O'Neal Greenhow, the charming widow of Robert Greenhow, who was arrested on the 23d of August, 1861, on the charge of being a spy, confined for a time in her own house, and then transferred to the Old Capitol. After being confined until June 2, 1862, she was released and sent within the Confederate lines, after taking an oath that she would not return. With her were sent Mrs. Augusta Morris and Mrs. C. V. Baxley, against whom similar charges had been brought.

     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 criticising the exercise of arbitrary power. As a result of all these things taken together, Congress passed an act, which was approved on March 3, 1868, 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 18, 1868, his General Order No. 88, 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, 1868, 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 he 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 had 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, O. 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 1868 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 for life. Meanwhile, Colonel Milligan had appealed to the Supreme Court of the United States, which took up the case and finally decided April 8, 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.