CH. XIX.]

POLITICAL PRISONERS

231

By

been called for and sent to both houses of Parliament. the act of March 3, 1863, the Secretary of State and the

military prisoners reported there during the rebellion." The context shows that political prisoners are meant. Col. F. C. Ainsworth, Chief, Record and Pension Office, War Department, very kindly made at my request a thorough search of the records, and the result is given in his letter to me of June 1, 1897: "A Commissary-General of Prisoners was appointed to date from October 7, 1861, and the records of his office, which cover the period from February, 1862, until the close of the war, contain the names of 13,535 citizens who were arrested and confined in various military prisons during the war. After a protracted and exhaustive examination of these records it has been found impossible to determine with even approximate accuracy how many of these prisoners were charged with any particular class of offences. The records are very incomplete, and in many instances do not show the charges on which arrests were made. In addition to this many prisoners were confined in two or more different prisons, the records of which do not agree as to the causes of the arrests. Some of the charges recorded are as follows: Treason, disloyalty, inciting or participating in riot, aiding and abetting rebels, defrauding government, stealing government property, robbing U. S. mail, blockade running, smuggling, spy, enticing soldiers to desert, aiding and harboring deserters, defrauding recruits of bounty, horse-stealing.' For the reasons stated above, however, it is impossible to ascertain how many arrests were made on any one of these charges.

"It is certain that a considerable number of arrests of civilians in addition to those reported to the Commissary-General of Prisoners were made during the war, because it is known that prisoners of this class were confined by military authority in State prisons and penitentiaries, the records of which are not on file in this department, and nothing has been found to show that prisoners of this class were reported to the Commissary-General of Prisoners. It is also probable that the records of that officer do not contain the names of many persons who were arrested by order of the Secretary of State or the Secretary of the Navy.

"I have given the subject of your inquiry much attention, and several of the most experienced clerks in the office have made an examination of all records likely to throw light upon the subject, but I regret to say that the result of the investigation is far from being satisfactory. I am convinced, however, that it is impossible to compile a statement with regard to this subject that will be of more value to you than that given above.

"In reply to your inquiry as to the accuracy of the statement made by Mr. Alexander Johnston, in Lalor's Cyclopædia, to the effect that 38,000 prisoners were reported to the Provost-Marshal-General during the Rebellion, I beg to say that a thorough search of the records has been made for the purpose of determining if possible the authority upon which this statement was based, but nothing whatever relative to the subject has been found. I am satisfied that this statement was based upon an 'estimate' that may have

Secretary of War were required to furnish lists of "State or political prisoners" to the judges of the United States Courts, but no lists, so far as I have been able to ascertain, were ever furnished; and in truth the relish for autocratic government had so developed that in September of this year Chase was surprised that the provisions of this act were unfamiliar to the President and to all the members of the cabinet except himself.1

In both countries those opposed to the government called the state of things a "reign of terror;" in both cases the phrase was a misnomer; in neither country up to the present time have the great principles of liberty been invalidated by the exercise in its crisis of those extraordinary powers. In Great Britain the government displayed method in its rigor. It instituted prosecutions in Scotland, where, the rule being different from that in England, the courts had "unrestricted power to visit sedition with the penalty of transportation" and cruel punishments were inflicted for insignificant offences. The special acts of Parliament were more comprehensive and severe than those of Congress, and they led in England to prosecutions which were unreasonable and unjust.2 In the

been made by Johnston, or by some one for him, and was really nothing but a guess."

I dislike to take up space in showing the processes by which I arrive at a statement, but this subject is open to misconception and has been full of difficulty. Mr. Ainsworth's careful and scientific report was the end of my investigation. As authorities before I reached this point at which I was delivered from the maze, I will mention: Vallandigham in his speech in the House of Feb. 23, 1863, declared that at one time there had been confined for "treasonable practices" 640 prisoners at Camp Chase, Ohio. The assistant provost-marshal-general of Illinois stated in his report of Aug. 9, 1865, that the number of arrests exclusive of deserters, from the date of the organization of his office to May 31, 1865, was 443. In regard to the number of arrests and lists of persons confined at Forts Lafayette and Warren and other places furnished by the military commandants, see O. R., series ii. vol. ii., "Treatment of Suspected and Disloyal Persons North and South," pp. 102, 113, 154, 165, 202, 271; Appleton's Annual Cyclopædia, 1863, p. 484; also American Bastile, Marshall, and Hist. of the Secret Service, Baker, passim.

1 Chase's diary, MS., loaned me by the kindness of Professor A. B. Hart. 2 Fox wrote in a private letter of April 12, 1795: "The bills of this year

CH. XIX.] CRUEL PUNISHMENTS IN GREAT BRITAIN

233

comparison one is struck with the more careful observance of the forms of law in the older country. Most of the harshness was committed in a regular manner which was rendered easier by the subservience of Parliament to the king and the ministry, the stricter execution of the laws in the Great Britain of 1793-1802 than in the United States of 1861-65, and the greater devotion of the bench to the government. In Scotland this subordination amounted to servility: indeed one judge instructed the jury in a charge that bestowed upon him the nickname of Jeffreys. With us there were no individual cases of so extreme hardship as in Scotland. Four able and educated men were sentenced to fourteen years' transportation to Botany Bay1 because they had advocated parliamentary reform and universal suffrage. It falls not to me to tell a tale of suffering on board the hulks, of the lives of aspiring men crushed by the cruelty of the law, nor have I to mention a monument like the Martyrs' Memorial on Calton Hill in Edinburgh; but, on account of the wholesale violations of personal liberty by our government, it well may be that the mass of suffering in our land was even greater.2

appear to me to be a finishing stroke to everything like a spirit of liberty." In 1800 in a letter to Gray he spoke of the country as being "both corrupted and subdued.". Correspondence, vol. iii. pp. 105, 307.

1 A fifth, a clergyman, was sentenced for seven years.

2 My authorities for this discussion of affairs in Great Britain are the different statutes suspending the habeas corpus act, beginning with 34 Geo. 3, ch. 54; the Treasonable Attempts act, the Seditious Meetings act; the different debates in the House of Commons and House of Lords on the suspension of the habeas corpus, Parl. Hist., especially Pitt, Fox, and Courtenay, May, 1794, Courtenay and Tierney, Dec. 1798, Sheridan, Lord Eldon, Hobhouse and Canning, Lords King and Holland, Feb. 1800; Journals of the House of Lords and House of Commons; Buckle, Hist. of Civilization, vol. i. p. 348 et seq.; May, Constitutional Hist. of Eng., vol. ii. p. 134 et scq.; Twiss's Life of Lord Eldon, vol. i.; Campbell's Lives of the Chancellors, vol. vi.; Fox's Correspondence, vol. iii.; The Story of the English Jacobins, Smith; Adolphus, Hist. of George III., vols. vi. and vii.; Alison, Hist. of Europe, vols. iv., v., vi.; Green, Hist. of Eng., vol. iv.; S. R. Gardiner, article "England," Enc. Brit., vol. viii. p. 361; Life of Cartwright, vol. i.; Bradlaugh, Impeachment of the House of Brunswick; Life of Francis Place, Graham Wallas.

For my purpose I have not deemed it necessary to run the parallel to the

After careful consideration of our own case, I do not hesitate to condemn the arbitrary arrests and the arbitrary interference with the freedom of the press in States which were not the theatre of the war and where the courts were open. I do not omit to take into account that, bad as was Vallandigham's speech in the House, even worse was much of the writing in the Democratic newspapers; that the "Copperhead " talk on the street, in the public conveyances, and in the hotels was still more bitter and vituperative; that the virulence was on the increase, and that constant complaints of "the utterance of treasonable sentiments" were made by patriotic men to the authorities. Nevertheless I am convinced that all of this extrajudicial procedure was inexpedient, unnecessary, and wrong; that the offenders should have been prosecuted according to law, or, if their offences were not indictable, permitted to go free.1 "Abraham Lincoln," writes James Bryce, "wielded more authority than any single Englishman has done since Oliver Cromwell." 2 My reading of English history and comparative study of our own have led me to the same conclusion, although it must be added that the power which Cromwell exercised far transcended that which was assumed by Lincoln, who governed with less infraction of the Constitution of his country than did the Protector of the Commonwealth. Moreover, there was in Lincoln's nature so much of kindness and mercy that he mitigated the harshness perpetrated by Seward and by Stanton. The pervasion of his individual influence, his respect for the Constitution and the law which history and tradition ascribe to him, the greatness of his character and work have prevented the generation that has grown up since the civil conflict from appreciating the enormity of

violations of personal liberty in England in a time of peace. For the repressive measures of 1817, and the "Six Acts" of 1819, see Const. Hist. of Eng., May, vol. ii. p. 183 et seq.; Life of Place, Wallas, p. 120.

1 See vol. iii. p. 555; ante, p. 165.

2 American Commonwealth, vol. i. p. 61.

It may be interesting to consult Gardiner's History of the Commonwealth and Protectorate, vol. ii. chap. xxvi., pp. 244, 247, 253, 278 et seq., 315.

CH. XIX.]

ARBITRARY ARRESTS

235

the acts done under his authority by the direction of the Secretaries of State and of War. While I have not lighted upon an instance in which the President himself directed an arrest, he permitted them all; he stands responsible for the casting into prison of citizens of the United States on orders as arbitrary as the lettres-de-cachet of Louis XIV., instead of their apprehension, as in Great Britain in her crisis, on legal warrants.1

The infractions of the Constitution caused concern to many Republicans, and were the subject of earnest debates at this session of the Senate. More notable was the special message to the Pennsylvania legislature of Curtin, one of the great "war governors," attached to Lincoln, and from the first a zealous supporter of the emancipation proclamation. In this message he protested by indirection, though with entire plainness, against the arbitrary acts of the government, and suggested that there was no need of infringing upon the

1 Through the kindness of Thornton K. Lothrop, I have seen the originals of several orders for the arrest of persons and their commitment to Fort Warren or Fort Lafayette which were sent from the State and War Departments at Washington to the United States authorities in Boston. The following are examples: [Telegram] "Wash., Sept. 14, 1861. United States Marshal: Arrest Leonard Sturtevant and send him to Fort Lafayette, N. Y., and deliver him into custody of Col. Martin Burke. Wm. H. Seward"; [Telegram] "War Dept., Wash., Oct. 19, 1861. Richard H. Dana, Jr., U. S. Dist. Atty.: Send Wm. Pierce to Fort Lafayette. F. W. Seward"; [Telegram] "Wash., Sept. 2, 1864. United States Marshal: John M. Watson is in Boston, Number 2 Oliver Place. He will to-day or to-night receive goods from Lawrence, New York, probably nautical instruments, care of Winser & Son, also clothes and letters from St. Denis Hotel. Watch him, look out for the clothes and letters, and seize them and arrest him when it is the right time. When arrested don't let him see or communicate with any one, but bring him immediately to Washington. The letters and goods should be had by all means. E. M. Stanton." Similar orders are printed in Marshall's American Bastile, and in O. R., series ii. vol. ii.

As to Great Britain see 34 Geo. 3, ch. 54, and the statutes continuing the suspension of the habeas corpus act After a careful reading of the debates in Parliament, I believe that the restrictions in these statutes were observed by the government; but see Hobhouse in House of Commons, Feb. 19, and Sheridan, Dec. 11, 1800.