The Life of Lyman Trumbull

July 15, Trumbull reported this bill from the Judiciary Committee of the Senate with a recommendation that it pass. It was opposed vigorously by Wilson, of Massachusetts, who called it a general jail delivery for the benefit of traitors. He moved to strike out all of it except the section which authorized the President to suspend the privilege of the writ of habeas corpus. This motion was rejected by a majority of one, but the session came to an end on the following day without a final vote on the passage of the bill.

In the meantime President Lincoln had seen fit to transfer the license of making arbitrary arrests from the Secretary of State to the Secretary of War. The change was no betterment, however, for, where Seward had previously chastised the suspected ones with whips, Stanton now chastised them with scorpions. Arbitrary arrests became more numerous and arbitrary than before. A special bureau was created for them under charge of an officer styled the Provost Marshal of the War Department.

In the ensuing political campaign the Democrats made the greatest possible use of the issue thus presented, and they showed large gains in the congressional elections in the autumn of 1862. They carried New York, New Jersey, Pennsylvania, Ohio, Indiana, Illinois, and Wisconsin. Horatio Seymour was elected governor of the Empire State, and William A. Richardson (Democrat) was chosen by the legislature of Illinois as Senator in place of Browning, who was filling the vacancy caused by the death of Senator Douglas. It is impossible to say how much influence the arbitrary arrests had in producing these results, but it is certain that the Republican leaders were alarmed. Stanton fell into a panic. The general jail delivery apprehended by Wilson took place by a stroke of Stanton's pen on the 22d of November, without waiting for the final vote on Trumbull's bill, and Wilson himself voted for the bill.

In the House, Thaddeus Stevens introduced a bill to indemnify the President and all persons acting under his authority for arrests and imprisonments previously made. This was passed under the previous question, December 8, unfairly and without debate.

When Congress reassembled in December, Trumbull called up the House bill and offered a substitute for it. He held that under the Constitution Congress must authorize and regulate the suspension of the writ of habeas corpus. He would not, however, limit the exercise of the executive power to the time of meeting of the next Congress, as the House bill provided. His substitute proposed that the suspension of the writ should be left to the discretion of the President as to time and place during the continuance of the rebellion, but that political prisoners should not be held indefinitely without knowing the charges against them. The second section provided that lists of all prisoners of this class in the loyal states should be furnished, within twenty days, to the courts of the respective districts and laid before the grand juries with a statement of the charges against them, and if no indictments should be found against them during that term of court they should be discharged upon taking an oath of allegiance to the United States, and (if required by the judge) giving a bond for good behavior. Future arrests for political offenses were to be regulated in like manner. Collamer moved to strike out the second section, but failed by two votes.

Republican resistance to this measure now ceased and the rôle of opposition was taken up by the Democrats. Powell, of Kentucky, contended that the power to suspend the writ of habeas corpus was lodged in Congress exclusively and could not be delegated to the President. He raised the objection also that there was no definition of the phrase "political offenses." Trumbull agreed to strike out that phrase altogether, in which case the President would have the power to suspend the writ for all offenses, and could determine for himself which ones were political and which were non-political. As to the right of Congress to delegate its own powers to the President in analogous cases, he cited the power to borrow money, the power to grant letters of marque and reprisal, and the power to call forth the militia, all of which were lodged in Congress, but which Congress never exercised directly, but only by delegating its powers to the Executive.

Senator Carlile, of Virginia, held that the writ of habeas corpus ought never to be suspended in places where the courts were open. Trumbull replied that if it were not suspended in those places it could never be suspended at all, for if there were no courts open, the writ itself could not be issued. Yet the Constitution clearly contemplated the necessity of suspending it in certain conditions where it actually existed.

February 23, 1863, Trumbull's substitute was agreed to by yeas 25, nays 12, and the bill was passed by 24 to 13. All of the negative votes, except two, were cast by Democrats.

February 27, the Senate took up the Stevens House bill to indemnify the President and adopted a substitute proposed by Trumbull. The substitute was not adopted by the House, but a conference was asked for and agreed to by the Senate. The conferees decided to consolidate into one act the Indemnity Bill and the Habeas Corpus Bill, which was still pending between the two houses. The report of the Conference Committee was presented to the Senate by Trumbull on March 2, one day before the end of the Thirty-seventh Congress.

Except the financial bills, this was the most important measure of the session, and the one about which the most heat had been engendered. On the 24th of September, 1862, the President had proclaimed martial law throughout the nation as to persons discouraging enlistments or resisting the Conscription Act and had suspended the writ of habeas corpus as to such persons. On the 1st of January following, he had issued the Emancipation Proclamation, of which he had given preliminary notice one hundred days before. These measures were extremely distasteful to the Democrats and especially so to those of the border slave states. The pending measure was intended to condone all former arbitrary arrests and to sanction an indefinite number in the future, although providing for speedy trials.

When the report was presented, Powell, of Kentucky, moved to postpone it till the following day. Trumbull would not agree to any postponement unless there was an understanding on both sides that a vote should be taken within a limited time. It was finally agreed between himself and Bayard, of Delaware, that it should be postponed until seven o'clock in the evening, with the understanding that there should be no filibustering on the measure. The postponement was to be for debate and discussion only. "So far as I know, or can learn, or believe," said Bayard, "it is delay for no other purpose." Powell was present when this colloquy took place and he neither affirmed nor denied. Trumbull took it to be an agreement between the two political parties.

The debate began with a speech from Senator Wall (Democrat), of New Jersey, who held the floor till midnight, when Saulsbury, of Delaware, moved that the Senate adjourn. The motion was negatived by 5 to 31. Powell moved that the bill be laid upon the table. This was negatived without a division. Then Powell began a speech against the bill. At 12.40 a.m., Richardson moved that the Senate adjourn; negatived by 5 to 30. Powell continued his speech and became involved in a running debate with Cowan, of Pennsylvania, who took the floor after Powell had finished and made a speech, apparently unpremeditated, but nevertheless a great speech, going to the foundation of things and showing that the Administration must be sustained in this crisis, since otherwise the fabric of self-government in the United States would perish. He did not say that he approved of, or condoned, arbitrary arrests in the loyal states. All his implications were to the contrary, but he insisted that those who would save the country and ward off chaos and anarchy could not pause now to contend with each other on the issue whether the President had the right to suspend the writ of habeas corpus or whether Congress had it. He said that he observed signs, on the Democratic side, of filibustering against the bill, and he thought that such tactics were unjustifiable and highly dangerous. His argument carried the greater force because of his habitual conservatism. While it did not, perhaps, change any votes, it probably dampened the resistance of the Northern Democrats to the bill.

When Cowan had concluded, Powell took the floor to reply. At 1.53 a.m., Bayard interrupted him with a motion to adjourn, which was negatived by 4 to 35. Powell resumed his speech and made a much longer one than his first, at the end of which he moved an adjournment, negatived by 4 to 32. Then Bayard made a long speech against the bill. He finished at 5 o'clock and Powell made another motion to adjourn, which was negatived, 4 to 18, no quorum voting.

Some confusion followed the disclosure of the absence of a quorum. Several motions were made and withdrawn, and finally Fessenden called for the yeas and nays on Powell's motion to adjourn. In the mean time a quorum had been drummed up and the roll-call showed 4 yeas to 33 nays. There was considerable noise and confusion on the floor when the result was announced and the presiding officer (Pomeroy, of Kansas) said quickly:

The question is on concurring in the report of the Committee of Conference. Those in favor of concurring in the report will say "aye"; those opposed, "no." The ayes have it. It is a vote. The report is concurred in.

Trumbull instantly moved to take up a bill from the House relating to public grounds in Washington City, and his motion was agreed to. Then Powell wanted to go on with the Indemnity Bill and was informed by Grimes that it had already passed. He denied that it had passed and called for the yeas and nays. Trumbull claimed the floor and his claim was sustained by the chair. Powell called it a piece of "jockeying." After some further recrimination the Senate adjourned.

On reassembling, the question whether the bill had passed or not was again taken up. The Senate Journal showed that it had passed, and the question arose on a motion to correct the Journal. In the debate which ensued it was proved that the presiding officer did actually put the motion in the words quoted above; that, of the four Democrats who voted on the last roll-call, none heard it; that the Democrats were in fact filibustering against the bill, or at all events that Powell was doing so, for he avowed that he had intended to defeat it by any means in his power. On the other hand, there is no doubt that the passage of the bill was accomplished by the sharp practice of Pomeroy; but it was damnum absque injuria, snap judgment being no worse than filibustering. Moreover, there is evidence that of the thirteen Democratic Senators, only four or five were really determined to kill the bill at all hazards. All except that number absented themselves from the night session, while all or nearly all the Republicans remained in their places.

The Conference Report was concurred in on the 2d of March and the bill was approved by the President on the following day. We may infer, therefore, that the power to suspend the writ of habeas corpus resides in the legislative branch of the Government, of which the President is a part, and that Congress may delegate its powers to the President and prescribe conditions and limitations to its exercise.

No legislation more wholesome was enacted during the war period. No act of the period was more precise and lucid and less equivocal in its terms. Yet within two months it was grossly violated by the banishment of Clement L. Vallandigham, an ex-member of Congress from Ohio.

Vallandigham was the incarnation of Copperheadism. I heard his speech of January 14, 1863, in the House, in which he discharged all the pro-slavery virus that he had been collecting from his boyhood days. As a public speaker he had no attractions, but rather, as it seemed to me, the tone and front of a fallen angel defying the Almighty. There was neither humor nor persuasion nor conciliation in his make-up. He was cold as ice and hard as iron. Although born and bred in a free state, he avowed himself a pro-slavery man. In the speech referred to he took two hours to prove the following propositions: (1) That the Southern Confederacy never could be conquered; (2) that the Union never could be restored by war; (3) that it could be restored by peace; (4) that whatever else might happen, African slavery would be "fifty-fold stronger" at the end of the war than it had been at the beginning.

General Ambrose E. Burnside, after his defeat at Fredericksburg, had been sent to take command of the Department of the Ohio. Vallandigham was now seeking the nomination of his party for governor of Ohio, and his chances of success were not flattering until Burnside caused him to be arrested for alleged treasonable utterances in a speech delivered at the town of Mount Vernon on the 1st day of May, 1863. He was taken out of his bed at Dayton in the night and carried to Cincinnati, put in a military prison, tried by a military commission, found guilty, and sentenced to close confinement in Fort Warren during the continuance of the war. President Lincoln commuted his sentence to banishment to the Southern Confederacy. He was accordingly sent across the army lines and handed over to his supposed friends, who did not, however, receive him with any touching marks of affection.

Under the Act of Congress approved March 3, 1863, it was the duty of the Secretary of War within twenty days to report the arrest of Vallandigham to the judge of the United States District Court for southern Ohio, with a statement of the charges against him, in order that they might be laid before the grand jury, and if an indictment were found against him, to bring him to trial; and if no indictment were found during that term of court, to discharge him from confinement. Any officer, civil or military, holding a prisoner in contravention of that act was guilty of a misdemeanor and liable to a fine of not less than five hundred dollars and to imprisonment in the common jail not less than six months. Accordingly, all the proceedings in the case of Vallandigham subsequent to his arrest were unwarranted and lawless. The arrest itself was, perhaps, permissible under the act, because the President had the right to suspend the writ of habeas corpus. When Vallandigham applied for the writ, Judge Leavitt refused it on that ground. The refusal of the writ, however, did not justify the later proceedings.

The military trial of Vallandigham and his subsequent banishment led to vehement protests from Northern Democrats, which, in the light of the present day, seem not unreasonable. President Lincoln replied at great length and on the whole successfully to one such protest which came from a committee of citizens of New York, of which Erastus Corning was chairman. He did not fare so well in a later controversy with a committee of the Ohio Democratic State Convention, who visited the Executive Mansion and submitted their protest in writing under date of June 26. In this communication they covered the same ground as the New York men and added these words:

And finally, the charge and the specifications on which Mr. Vallandigham was tried entitled him to a trial before the civil tribunals according to the express provisions of the late acts of Congress approved by yourself July 17, 1862, and March 3, 1863.

Mr. Lincoln replied to everything in the protest of the Ohio men except this paragraph. His failure to reply on this point gave them the opportunity to retort that his answer was "a mere evasion of the grave questions involved." This is the only instance in Mr. Lincoln's controversial writings, so far as I can discover, where such a retort seems justified. The correspondence is published in Appleton's Annual Cyclopædia, 1863.

The New York Tribune deprecated, in no querulous tone, but in moderate and dignified language, the entire proceedings in Vallandigham's case, and deemed them not helpful to the cause of the Union, but the contrary.

Vallandigham was not the kind of man to win public sympathy, even for his misfortunes. Moreover, his transference to the society that he was supposed to be most fond of (as an alternative to close confinement in Fort Warren) had a flavor of jocularity that dulled the edge of criticism; but his strength in his own party was vastly augmented by these proceedings. He was nominated for governor by acclamation, and would probably have been elected had not the victories at Gettysburg and Vicksburg, two months later, withdrawn attention from him, inspired the Unionists with new enthusiasm, and correspondingly depressed their opponents.

Burnside, finding himself sustained by his superiors in doctoring Copperheadism in Ohio, enlarged the scope of his practice. On the 1st of June he issued an order forbidding the circulation of the New York World in his department and stopping the publication of the Chicago Times. Brigadier-General Ammen was charged with the execution of the latter order. On the following day, Ammen notified Wilbur F. Storey, the editor of the Times, that he would not be allowed to issue his paper on the 3d of June. Storey appealed to the United States District Court for protection. Shortly after midnight Judge Drummond issued a writ directing the military authorities to take no further steps under Burnside's order to suppress the Times until the application for a permanent writ of injunction could be heard in open court. The judge said:

I may be pardoned for saying that personally and officially I desire to give every aid and assistance in my power to the Government and the Administration in restoring the Union, but I have always wished to treat the Government as a government of law and a government of the Constitution, and not a government of mere physical force. I personally have contended and shall always contend for the right of free discussion and the right of commenting under the law and under the Constitution upon the acts of the officers of the Government.

Notwithstanding the order of the judge, a body of troops broke into the office of the Times at half-past three o'clock in the morning, after nearly the whole edition had been printed, and took possession of the establishment. When daylight came there was great excitement in Chicago. Although the Times was a Copperhead sheet of an obnoxious type, many loyal citizens were convinced that Burnside's order would produce vastly more harm than good to the Union cause. A meeting was hastily called at the circuit court room, at which Senator Trumbull and Congressman I. N. Arnold were present. Hon. William B. Ogden, ex-mayor, president of the Chicago and Northwestern Railway, a Republican in politics, offered for adoption a resolution requesting President Lincoln to suspend or rescind Burnside's order suppressing the Times. The resolution was adopted unanimously by the meeting and a petition to that effect was drawn up, signed, and sent around town for additional signatures. It was then telegraphed to the President, and Trumbull and Arnold sent an additional telegram asking that it might receive his prompt attention.

Outside of the room, however, the utmost contrariety of opinion existed. The streets were filled with heated disputants, and there was danger of rioting throughout the day following the suppression of the newspaper. In the evening of June 3, a great meeting of persons opposed to Burnside's order was held in the Court-House Square, which was addressed by General Singleton, Moses M. Strong, of Wisconsin, B. G. Caulfield, and E. G. Asay, Democrats, and by Senator Trumbull and Wirt Dexter, Republicans.

In the mean time Judge Drummond was hearing the arguments of Storey's lawyers on the question of making permanent the injunction that had already been disobeyed. While the proceedings were going on, a telegram came from Burnside to Ammen, dated Lexington, Kentucky, June 4, saying that his order for the suppression of the Chicago Times had been revoked by order of the President of the United States. The soldiers were accordingly withdrawn and Mr. Storey resumed possession of his property.

The Chicago Evening Journal published the following outline of Trumbull's speech on this event:

The point of Judge Trumbull's speech was to show the importance of adhering to the Constitution and laws in all measures adopted for the suppression of the rebellion. He contended that they furnished ample provisions for dealing with traitors in our midst; that the Administration and its friends were weakened by resort to measures of doubtful authority against rebel sympathizers where the law furnished adequate remedies; that while no one questioned the authority of military commanders in the field and within their lines where the civil authorities were overborne, to exercise supreme authority, the right to do this in the loyal portions of the country, where the judicial tribunals were in full operation, was very questionable. He held that by its exercise in such localities the enemies of the country were given a great advantage, by alleging that their constitutional rights and privileges were arbitrarily interfered with. He insisted that the Constitution and laws were supreme in war as well as in peace, and that the denial of this proposition was an acknowledgment that the people were incapable of self-government—an admission that constitutional liberty and the rights of the citizen, guaranteed by fundamental laws, were of no value except in peaceful times, so that in tumultuous times personal liberty regulated by law, to establish which the Anglo-Saxon race had been contending for centuries, must give way to the discretion of any man who might happen at the time to be at the head of the Government; that this, the American people are not prepared to admit, nor was it necessary they should; that the right of free speech and a free election should never be surrendered; but that this freedom did not imply the right, in time of civil war, to give aid and comfort to the enemies of the country, either directly or indirectly, against which the laws made ample provision.

The legislature of Illinois was then in session and both houses passed resolutions condemning the action of the military authorities in suppressing the Chicago Times.66