CHAPTER XII
ARBITRARY ARRESTS
The jaunty manner in which Secretary Seward administered the laws respecting the liberty of the citizen in the earlier years of the war is treated by John Hay with a humorous touch under date October 22, 1861:
To-day Deputy Marshal came and asked what he should do with process to be served on Porter in contempt business. I took him over to Seward and Seward said: "The President instructs you that the habeas corpus is suspended in this city at present, and forbids you to serve any process upon any officer here." Turning to me: "That is what the President says, is it not, Mr. Hay?" "Precisely his words," I replied; and the thing was done.[65]
Prior to the assembling of Congress in July, 1861, the President had given to General Winfield Scott authority in writing to suspend the privilege of the writ of habeas corpus at any point on the line of the movement of troops between Philadelphia and Washington City. Without other authority Seward began to issue orders for the arrest and imprisonment of persons suspected of disloyal acts or designs, not only on the line between Philadelphia and Washington City, but in all parts of the country.
When the special session of Congress began, Senator Wilson, Chairman of the Committee on Military Affairs, introduced a joint resolution to declare these and other acts of the President "legal and valid to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States." The clause of the Constitution which says that 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, does not say in what mode, or by what authority, it may be suspended.
Straightway there were differences of opinion as to the lodgment of the power to suspend, whether it was in the executive or in the legislative branch of the Government. Other differences cropped up as to the phraseology of the Wilson Resolution and its legal intendment. It might be construed as an affirmance by Congress that the President's act suspending the writ was lawful at the time when he did it, or, on the other hand, that it became lawful only after Congress had so voted, and hence was unlawful before. These diversities of opinion were very tenaciously held by different members of the Senate and House, of equal standing in the legal profession. The result was that Wilson's joint resolution was debated at great length, but did not pass. Instead of it an amendment was added to one of the military bills declaring that all acts, proclamations, and orders of the President after the 4th of March, 1861, respecting the army and navy, should stand approved and legalized as if they had had the previous express authority of Congress; and the bill was passed as amended. This was understood to be a mere makeshift for the time being.
The general question was again brought to the attention of Congress by Trumbull, December 12, 1861, when he introduced in the Senate the following resolution:
Resolved, that the Secretary of State be directed to inform the Senate whether, in the loyal states of the Union, any person or persons have been arrested by orders from him or his department; and if so, under what law said arrests have been made and said persons imprisoned.