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[202] 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, 1863, 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 13, 1863, his General Order No. 38, declaring that ‘the habit of declaring sympathies ’

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