The Lincoln Administration and Arbitrary Arrests: A Reconsideration

Portrait taken by Mathew B. Brady, probably 1863. Page  [End Page 6]

The apologetic tone taken by James G. Randall and other writers on the problem of arbitrary arrests in the North during the Civil War has always seemed to me to be curiously at odds with the tone Abraham Lincoln himself took. He did not apologize. In his public letter of June 12, 1863, to Erastus Corning and others, Lincoln said with characteristic toughness: "... the time [is] not unlikely to come when I shall be blamed for having made too few arrests rather than too many." He argued that the Confederate States, when they seceded, had been counting on being able to keep "on foot amongst us a most efficient corps of spies, informers, supplyers, and aiders and abettors of their cause" under "cover of 'Liberty of speech' 'Liberty of the press' and 'Habeas corpus.'" Nicolay and Hay, who were not given to overstatement, noted that "few of the President's state papers ... produced a stronger impression upon the public mind than this." [1]

Little wonder. Elsewhere in the letter, the president used even stronger language, saying that he could never:

As most students of the Lincoln administration's racial policies agree, a historian must pay careful attention not only to what Lincoln said but also to what he actually did. The administration's statistical record on arbitrary arrests is persuasive testimony that Lincoln was not particularly embarrassed by the policy. No careful work on the numbers of civilians arrested by military authorities or for reasons of state has ever been done by a historian, and those historians who have attempted an estimate previously have been writing with the goal of defending Lincoln in mind. Even so, the lowest estimate is 13,535 arrests from February 15, 1862, to the end of the war. [3] At least 866 others occurred from the beginning of the war until February 15, 1862. Therefore, at least 14,401 civilians were arrested by the Lincoln administration. If one takes the population of the North during the Civil War as 22.5 million (using the 1860 census and counting West Virginia but not Nevada), then one person out of every 1,563 in the North was arrested during the Civil War.[4]

The February 15, 1862, date is significant because that is the date when authority for the arrests was switched from the State Department to the War Department. Evidence is sketchy, but this appears to have been strictly a matter of administrative convenience or logic. President Lincoln never made any high-level personnel or organizational move aimed at abating the severities of his internal security measures. The program was always in the hands of persons who were firm believers in its necessity as a means of saving the Union.

William H. Seward became notorious for his alleged ability to exceed the king of England in his power to have any citizen arrested simply by ringing a little bell on his desk. The bell story appears apocryphal, but Seward's staunch belief that disloyalty in the North was a serious problem was not. When the president polled his cabinet about the Sumter crisis on March 15, 1861, the secretary of state warned that coercing the seceded states would make "reunion ... hopeless, at least under this administration, or in any other way than by popular disavowal, both of the [resulting] war and of the administration which commenced it." Page  [End Page 8] War, he feared, would arouse an opposition party that would offer peace and would profit politically from reunion. In other words, Seward's initial assessment of the possibility of civil war was that it would arouse so many people opposed to the war that the administration could never win it.[5]

Seward was too busy to administer the arrest program and foreign policy at the same time, and as soon as Lincoln replaced the erratic Simon Cameron with Edwin M. Stanton in the War Department, Seward happily surrendered his authority over internal security. No one describes Stanton as anything but stern, and he in turn relied heavily on an even sterner man, Joseph Holt, the judge advocate general, to handle internal security. Holt's belief that the North was teeming with hundreds of thousands of traitors well organized in the Knights of the Golden Circle apparently exceeded the president's fears on this score, but Lincoln was content to allow a man haunted by such fears to exercise vast authority in internal security matters. [6]

Given the Lincoln administration's generally consistent support of the arrest policy and given the remarkable extent of the arrests — nearly one person in every 1,500 — I have been struck by two question which never seem to have been asked about the arbitrary arrests: (1) why did the policy not cause the administration more political trouble than it did? and (2) how efficient was the policy?

If the arrests had been aimed primarily at quashing dissent, so large a number would probably have threatened the fabric of what was left of the Union and would certainly have caused the administration serious political trouble. Yet the fact of the matter is that arbitrary arrests caused a minimum of social unrest. The three most famous and violent riots of the Civil War North — those in New York City in July 1863, in Baltimore in April 1861, and in Charleston, Illinois, in 1864 — had nothing to do with arbitrary arrests and the suspension of the privilege of the writ of habeas corpus. The Baltimore riot occurred before the privilege of the writ was suspended anywhere. The Charleston riot, too, was a Page  [End Page 9]

Sewards Little Bell — and Its Victims "THE LITTLE BELL," 1861–65."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 of New York; and no power on earth, except that of the President, can release them. Can the Queen of England do so much?" Secretary Seward to Lord Lyons Courtesy of the Louis A. Warren Lincoln Library and MuseumPage  [End Page 10]

Arbitrary arrests caused few remarkable disorders, no matter how sensational the case or how famous the victim. Clement Vallandigham was the most famous politician in Dayton, Ohio, but his arrest in the night — despite a mysterious shrill whistled signal and three shots the victim fired into the air to alert friends — brought few people even curious to see what was happening. True, a mob the next night set fire to the offices of the local Republican newspaper, and one rioter was shot by a soldier while trying to cut a water hose in use to douse the fire, but the riot was quickly put down without loss of life. There were indignation meetings in most of the major cities of the North following Valiant Val's arrest, but this was orderly protest organized by politicians with some stake in preserving the system.[7]

Valiant ValPage  [End Page 11]

Other arrested persons upon their release had friendly crowds to greet them, but the nature of the protest was decidedly political, that is, orderly and organized by a political party, the Democrats. The arrests produced a great amount of heated rhetoric from that party which, by and large, changed no one's mind about the Lincoln administration. According to Joel Silbey, the premier student of Democratic voting behavior in this period, the voting totals for the party were largely stable after the 1850s. Why did the policy not unseat the Lincoln administration?[8]

Since much of the writing on the subject, from Civil War times on, has focused on discussions of the constitutional justification for the suspension of the privilege of the writ of habeas corpus, no one seems to have been tempted to assess the efficiency of the arbitrary arrests. In fact, both those who assert their rightness and those who assert their wrongness have a tendency to assume that the arrests were inefficient and abusive, the victims chosen by affiliation with the Democratic party or press, and hordes of innocent persons incarcerated in a largely useless witch hunt. Lincoln himself encouraged that view a little by arguing, "... if, as has happened, the executive should suspend the writ ..., instances of arresting innocent persons might occur, as are always likely to occur in such cases; and then a clamor could be raised in regard to this, which might be, at least, of some service to the insurgent cause." How likely were such arrests to occur under Lincoln's administration? Were they more likely to occur than under other wartime administrations? [9]

To answer these questions which lie to some degree outside the usual question of the legality or constitutional validity of the arrests, I have begun compiling a list of all the civilian arrests in the North during the Civil War. From the State Department's record of "Suspicious and Disloyal Persons," from dozens of lists of inmates in federal prisons (the notorious "Bastilles of the North"), from William H. Seward's unpublished correspondence, and from the narratives of political prisoners published in book form, I have compiled a list of 866 "prisoners of state" or "political prisoners" (as they were very frankly termed by the Lincoln administration) arrested while Seward was in charge of the program. A close look at them suggests some rather surprising answers to the questions. Page  [End Page 12]

The most notable feature of the arrests is their geographic distribution. Of the 866 persons on the list, place of residence is noted for 582. One hundred and seventy-one were Marylanders. Thus a state with a little over 3 percent of the North's population produced 29.4 percent of the persons arrested by the Lincoln administration in the first year of the war. Kentuckians (about 5 percent of the North's population) accounted for 8.4 percent of the arrests. Because of a quirk of record-keeping, figures are not readily available for Missouri in this period (the prison-keepers in St. Louis and Alton, probably assuming that Seward would know that most of their inmates came from strife-torn Missouri, failed to report the place of residence of their civilian inmates), but records for other periods of the war indicate a percentage of arrests about as high as Maryland's. Even ignoring Missouri's obviously gross underrepresentation in these figures, the Border States alone accounted for 40.5 percent of the arbitrary arrests.

Another substantial percentage of persons arrested were not Northerners at all. Seventy-nine of the 582, or 13.6 percent were Virginia residents, and another 12.7 percent were residents of other seceded states. Thus a whopping 26.3 percent of the people Page  [End Page 13] arrested were citizens of Confederate states, either persons arrested for causing trouble in the few areas of the South controlled by Union armies in the first year of the war or Southerners trapped in the North when the war began and arrested for trying to get back home to join the Confederacy.

If one counts the District of Columbia as a Border State, on the ground that slavery remained legal there throughout the period of Seward's tenure as head of the administration's internal security measures, another 6.2 percent of the arrests are accounted for. Thus slave states accounted for 73 percent or nearly three-fourths, of the arbitrary arrests in the first year of the war. The administration was not yet officially at war with slavery, but surely the figure suggests a reasonable explanation for the arrests: people from slaveholding areas were not likely to be very keen on fighting the Civil War. No one would deny that loyalty was a serious problem in Maryland, Kentucky, and Missouri, all of which were threats at one time or another to join the Confederacy and two of which (Kentucky and Missouri) were scenes of out-right warfare from this early period on.

And whatever one may think of the legitimacy of arrests in constitutionally loyal states, surely this figure goes a long way toward explaining why civilian arrests did not cause the Lincoln administration serious political difficulty. Twenty-six and three-tenths percent of the people arrested had Jefferson Davis as their president and never figured in political calculations of the Lincoln administration. Likewise, well over 40.5 percent were citizens of states where Lincoln's political fortunes were never very high, the Border States; and District of Columbia voters did not vote for president.

It is true that Lincoln did not suspend the privilege of the writ of habeas corpus except in certain areas in the period when Seward oversaw the system: on the line from Philadelphia to Washington on April 27, 1861; on the Florida coast on May 10, 1861; near military lines between Washington and New York on July 2, 1861; and on that line extended to Bangor, Maine, on October 14, 1861. But martial law permitted arrests in Kentucky, Missouri, southern Illinois, and other areas, and many officials appeared to think the privilege of the writ had been suspended, period. Thus A.L. Anderson, the acting assistant adjutant-general in Santa Fe, New Mexico, told the Dept. of New Mexico on August Page  [End Page 14] 8, 1861: "The writ of habeas corpus has been suspended. ... " [10] And even when the area was extended later — officially — the geography of the arrests did not shift northward.

Another 8.6 percent of the arrests were unthreatening politically because they touched another group of non-voters, foreigners. Most of these were British subjects (5.3 percent of all persons arrested), usually released after a short period of time — not because they were not guilty of serious offenses against the United States but because the British government looked after its subjects, had consuls visit the prisons regularly in search of Englishmen, and put pressure on Seward to let them go. No one felt more keenly than Seward did the necessity of keeping Great Britain out of the war — hence the lucky fate of many a British supporter of the Confederacy. One Maryland inmate in Fort Lafayette noted bitterly in his diary when a new prisoner arrived: " ... [I] suppose as he is a 'British subject' he will be released as soon as the British Consul hears of his imprisonment; lucky thing now-a-days to have been born in England, or any where outside the 'Land of the Free and Home of the Brave!'" [11]

In sum, at least 81.6 percent of the arrests posed little political threat to the Lincoln administration and affected persons from areas where loyalty to the United States was, at the very least, a cloudy question. Some specific examples should serve to make clear how far the nature of the persons arrested put the policy of arbitrary arrests from any serious issue of quashing dissent. Among the residents of Confederate States who appear on the roles of civilian inmates in the so-called Northern bastilles were James M. Mason and John Slidell and their private secretaries. Surely no loyal Northerner was much concerned about the civil liberties of these official Confederate emissaries to Europe, taken from the Trent, "arbitrarily" arrested, and incarcerated without benefit of habeas corpus remedies. [12] Foreigners, of course, always find civil conflicts in other countries bewildering and some of the persons arrested were clearly confused, like Richard Walzl, an unnaturalized Austrian, 19 years old, who visited the Confederate States to see a sick relative and returned through the lines, apparently completely unaware that he had violated a govern- Page  [End Page 15] ment proclamation against such travel. He was arrested on suspicion of being a spy and engaging in illegal trade with the enemy because he had no pass from Union authorities. He went to the Old Capitol prison, only to be released quickly when the nature of his case was discovered.[13]

Examining the reasons for the arrests gives further cause to appreciate their lack of impact on Lincoln's political fortunes and helps provide some measure of their efficiency. Among the 866 arrests known to have occurred under Seward, 612 have some notation of cause of the arrest. Many of them have nothing to do with political dissent — or any other activity which normally takes place on dry land. One hundred and fourteen (or 18.6 percent) were picked up in boats or immediately upon disembarking from a vessel.

Most of the persons arrested on the high seas were blockade runners: owners, captains, crews, or passengers caught going through the blockade to a Confederate port. Here again the great error in many previous conceptions of the debate over arbitrary arrests becomes apparent. They were not aimed at shaping public opinion necessarily. In some respects even, they had no "aim," though Lincoln himself tended to think of them as being "made, not so much for what has been done, as for what probably would be done."[14] In fact, arrests were most often made for what had been done, though on skimpy evidence, and were frequently not so much "aimed" at alleviating particular problems as available as a catch-all solution for problems no one dreamed would arise and for which there seemed to be no other solution.

Blockade running is a perfect case in point. In 1864 a commission appointed by John A. Dix ruled "that not violator of blockade is, by the laws of war, personally liable to punishment for his act."[15] Proceeding were in rem and forfeitures of ship and cargo and loss of wages were the only penalties imposed by the law of nations for breach of blockade. Otherwise, it was an offense against the municipal law of the state or district where it was committed, and a United States court could not punish a blockade runner whose acts were committed within such limits. The men could be detained until brought to shore and held to give evidence in prize court, but that was all the legal system allowed. So the United States government, which had spent much blood and Page  [End Page 16] treasure capturing these men, simply held them "arbitrarily" — except for the British sailors, whom they were pressured into releasing. In this case, the problem was not even skimpy evidence but a loophole in the law.

Among the seafaring arrests were some of the most peculiar of the war: the "Southern honor" arrests, as they might be called. Bertram Wyatt-Brown has made us aware that Southern honor was a phenomenon of considerable motivating power for antebellum Southerners, and the Civil War provided a fine early example. Southern officers in the United States Navy, who happened to be at sea when the war began (some of them had been at sea for as long as three years), came to port, refused to take an oath of allegiance to the United States, refused to fight their parents and other relatives, and offered their resignations — and were promptly arrested and kept in a Northern bastille. A fellow inmate at Fort Lafayette painted a romantically melancholy portrait of these men:

It should be remembered too that many of the arrests involved allegations, not of victimless crimes like holding the wrong political ideas, but of serious ones like murdering pickets, bushwhacking, burning bridges, and raising money and men for the Confederate Army. This was especially the case in Missouri, Virginia, and Kentucky (always) and Maryland (at times of invasions of the North). The likelihood, of course, is that the percentage of serious crimes rose after 1862 as the Union conquered more and more Southern territory, just as it is likely that the percentage of the civilians arrested who were Confederate citizens and not possible voters for or against Lincoln rose.

In other words, the population of persons arrested got guiltier and guiltier (of being genuinely disloyal) as the war progressed. Even under Seward, a substantial portion of those arrested were guilty and were later indicted and convicted or confessed or (admittedly, the largest category here) asked to be exchanged and/or were exchanged. The Lincoln administration took the view that anyone willing to be exchanged for a Northerner in Confederate hands was guilty. This sort of follow-up information on the arrests is extremely difficult to come by, but a minimum of 2.9 percent (18) of the persons arrested were guilty by the above criteria. Add to these the blockade runners and honorable sailors (minus the English sailors who were duped into blockade running under the ruse of engaging for the West Indies trade [19] and other confused foreigners), and it could well be argued that at least 19 percent (117) of the 612 arrests netted guilty persons.

Thus the primitive state apparatus of Lincoln's day turned in a fabulously successful and efficient internal security system. Even the 2.9 percent success record beats that of the twentieth-century security apparatus of Woodrow Wilson's progressive state. Despite arrests during World War I of 6,300 enemy aliens (2,300 interned), 2,168 trials under the Espionage and Sedition Acts, and 40,000 men detained by the American Protective League's notorious "slacker raids," not one bona fide spy or saboteur was convicted by the Wilson administration. Franklin D. Roosevelt removed 120,000 Japanese-Americans from the West Coast in Page  [End Page 18] World War II, but there was not one single act of espionage, sabotage, or fifth-column activity by any Japanese-American on the West Coast in World War II. [20] Of course, I am comparing arrests of guilty persons with conviction in the World War I case, but given the disparity in size and nature of government apparatus between Lincoln's era and the Progressive Era, perhaps it is fair to grant some latitude to the primitive state of Lincoln's era.

One need only think of the famous spies who were in the Lincoln administration's hands at one time or another to be impressed with the efficiency of their internal security: Rose O'Neal Greenhow, the Washington socialite who gave McDowell's plans for the first Bull Run campaign to Beauregard (arrested on August 23, 1861, "arbitrarily"), for example, or Thomas A. Jones, the head of the Confederate "mail" system in southern Maryland and later the man who helped John Wilkes Booth escape to Virginia (arrested on October 4, 1861, "arbitrarily" and eventually released over the loud protest of military authorities). [21]

Mrs. Greenhow and her daughter in Old Capitol PrisonPage  [End Page 19]

Not everyone arrested was as sinister as Jones and Greenhow, of course, but even the non-sinister characters posed problems for harried officers which only arbitrary arrest seemed to solve. Riddick Brooks and William Robinson, for example, arrested at Hatteras Inlet, were black. They were personal servants of two captured Confederate Army officers. They were free Negroes but refused to take the oath of allegiance because they wanted to be able to go back home to North Carolina. [22] One should pity not only the sometimes innocent victims of the arbitrary arrests but also the often bewildered enforcers of the program who faced, for example, this situation, described by (an obviously white Southern) inmate of Fort Warren:

Arbitrary arrests, except for rare celebrity cases like that of Clement Vallandigham, remained throughout the Civil War a local problem (confined at first to the war-torn Border States and then more and more to the Confederate States themselves) or a remote problem (involving foreigners and persons on the high seas, where loyalty is always murky). Calling them arbitrary arrests "in the North" is almost a misnomer. Very few took place out-side the conquered Confederacy, the controverted Border, or the ocean. Proof of this lies in three reports issued in 1863. Page  [End Page 20]

A Select Committee on Military Arrests in the House of the Ohio General Assembly found only eleven citizens of some 2,340,000 had been deprived of their liberty by military arrest.[24] This was a Republican committee which may well have lacked investigative zeal, but a Democratic Committee on Arbitrary Arrests in the Indiana House was able to find only 43 civilians arrested (of about 1,350,000) from the beginning of the war until January 1863. Over one-third of them (15) were arrested as a result of a riot in Hartford City which resulted in the destruction of the box from which the provost marshall was preparing to draw the first name for the draft. There was no reign of terror even in Lambdin P. Milligan's home state: one of the 43 was released because there was no seal on the affidavit accusing him of a crime; legal technicalities still mattered.[25]

Finally, when the Habeas Corpus Act of March 3, 1863, required the War Department to supply lists of political prisoners to the U.S. Circuit and District Courts, Stanton delegated the task to Holt, who — late and reluctantly — submitted 170 names to the judges. These were supposed to be all the civilian prisoners in ten Federal prisons, but Holt grumbled that the Act had been carelessly written, and he excluded all persons arrested as "guerrillas" or "bushwhackers" or "as being with or aiding these" as well as those who came under the 57th Article of War. The fact of the matter is that most such crimes could occur only in Missouri (Holt singled out the St. Louis and Alton prisons as being especially full of the sorts of prisoners excluded) or the Confederacy, so that the list was biased Northward. Even so, 90 percent of the persons on the list were residents of slave states, 37.4 percent of them Missourians, 26.3 percent Virginians, and 22.8 percent from Maryland or Kentucky. There were five New Yorkers, three Pennsylvanians, one man from Ohio, and one from Maine. [26]

The blockade continued to provide its substantial share of civilian prisoners 30 percent of those in Fort Warren in June 1864, 23.5 percent of those in Fort Lafayette in July 1864, and 58 percent of those in Fort Lafayette in December 1864 were Page  [End Page 21] blockade runners.[27] And the system remained comparatively efficient. The commissary general of prisoners noted that from August 27, 1862, through the end of the war at least 1,729 civilian prisoners were exchanged. [28] If we take that as an admission of guilt, then at the very least 12.8 percent of those arrested proved guilty.

Judge Advocate General Joseph Holt

The fact of the matter is that the Lincoln administration's internal security system worked. It worked so well from its earliest beginnings that the administration was wedded to it for the duration of the Civil War. Its greatest success — by all contemporary estimations — was Maryland, retained in the Union by slapping 23 possibly secession-minded members of its state legislature in Fort Lafayette and by arresting other authorities reputed to be pro-Southern, especially in Baltimore. Nathaniel Banks, who commanded the Department of Annapolis in 1861 thought it worked, and it provided his model for Reconstruction in Louisiana and ever after:

Harold M. Hyman and William M. Wiecek astutely point out that the excesses of the Red Scare and McCarthyism "have left a tenacious suspicion that all efforts by government to protect itself against internal enemies are partisan, unnecessary, and hazardous to a fragile democracy." [31] The internal security measures of the Lincoln administration were unlike those later systems and can be appreciated only by recapturing the mood of the days in which they are enacted.

The earliest days of the war left indelible marks on the members of the fledgling Lincoln administration, and on none more so than on William H. Seward. When he saw Francis B. Carpenter's painting The First Reading of the Emancipation Proclamation Before the Cabinet, Seward scoffed that Carpenter was wrong to choose that subject as "the great feature of the Administration."