When this resolution came up for consideration (December 16), Senator Dixon, of Connecticut, objected strongly to it. He thought that it was unnecessary and unwise, and that it could result in nothing advantageous to the cause of the Union. Some of the persons referred to, he said, had been arrested in his own state. They had manifested their treasonable purposes by attempting to institute a series of peace meetings, so-called, by which they hoped to debauch the public mind under false pretense of restoring peaceful relations between the North and the South. The Secretary of State had put a sudden stop to their treasonable designs by arresting and imprisoning one or more of them. He contended that the Secretary had done precisely the right thing, at precisely the right time, and had nipped treason in Connecticut in the bud. The only criticism which loyal citizens had to make of his doings was that he had not arrested a greater number. If there had been any error on the part of the Executive, it had been on the side of lenity and indulgence. He, Dixon, would not vote for an inquiry into the legality of such arrests because they found their justification in the dire necessity of the time.
Trumbull asked how the Senator knew that the persons arrested were traitors. Who was to decide that question? If people were to be arrested and imprisoned indefinitely, without any charges filed against them, without examination, without an opportunity to reply, at the click of the telegraph, in localities where the courts were open, far from the theatre of war, such acts were the very essence of despotism. The only purpose of making the inquiry was to regulate these proceedings by law. If additional legislation was necessary to put down treason or punish rebel sympathizers in Connecticut, or in any other loyal state, he (Trumbull) was ready to give it, but he was not willing to sanction lawlessness on the part of public officials on the plea of necessity. He denied the necessity. The principle contended for by the Senator from Connecticut would justify mobs, riots, anarchy. He understood that some of the parties arrested had been discharged without trial and he asked if Mr. Dixon justified that. Then the following ensued:
Mr. Dixon. I do.
Mr. Trumbull. Then the Senator justifies putting innocent men in prison. Else why were they discharged? I take it that was the reason for their discharge. I have heard of such cases.
Mr. Dixon. They ought to be discharged, then.
Mr. Trumbull. They ought to be discharged, and they ought to be arrested, too. An innocent man ought to be arrested, put into prison, and by and by discharged. Sir, that is not my idea of individual or constitutional liberty. I am engaged, and the people whom I represent are engaged, in the maintenance of the Constitution and the rights of the citizens under it. We are fighting for the Government as our fathers made it. The Constitution is broad enough to put down this rebellion without any violations of it. I do not apprehend that the present Executive of the United States will assume despotic powers. He is the last man to do it. I know that his whole heart is engaged in endeavoring to crush this rebellion, and I know that he would be the last man to overturn the Constitution in doing it. But, sir, we may not always have the same person at the head of our affairs. We may have a man of very different character, and what we are doing to-day will become a precedent upon which he will act. Suppose that when the trouble existed in Kansas, a few years ago, the then President of the United States had thought proper to arrest the Senator or myself, and send him or me to prison without examination, without opportunity to answer, because in his opinion we were dangerous to the peace of the country, and the necessity justified it. What would the Senator have thought of such action?
The debate lasted the whole day. Senators Hale, Fessenden, Kennedy, and Pearce, of Maryland, supported the resolution. Senators Wilson, of Massachusetts, and Browning, of Illinois, opposed it.
Read in the light of the present day the arguments of the opposition are extremely flimsy. They said in effect: "We know that our rulers mean well; if we ask them any questions, we shall cast a doubt upon their acts and then the wicked will be encouraged in their wrongdoing, and treason will multiply in the land." It was Trumbull's opinion that arbitrary arrests were causing division and dissension among the loyal people of the North, and were thus doing more harm than good, even from the standpoint of their apologists. Democratic conventions censured them. That of Indiana, for example, resolved:
That the total disregard of the writ of habeas corpus by the authorities over us and the seizure and imprisonment of the citizens of the loyal states where the judiciary is in full operation, without warrant of law and without assigning any cause, or giving the party arrested any opportunity of defense, are flagrant violations of the Constitution, and most alarming acts of usurpation of power, which should receive the stern rebuke of every lover of his country, and of every man who prizes the security and blessings of life, liberty, and property.
At the close of the debate, Senator Doolittle moved to refer the resolutions to the Committee on the Judiciary, in order to have a report on the question whether the right to suspend the writ of habeas corpus appertains to the President or to Congress. This motion was opposed by Trumbull, but it prevailed by a vote of 25 to 17, and the subject was shelved for six months.
The question upon which Senator Doolittle wanted information had already been decided, so far as one eminent jurist could decide it, in the case of John Merryman, a citizen of Maryland, who was arrested at his home in the middle of the night on the 25th of May, 1861. He applied to Chief Justice Taney for a writ directing General Cadwalader, the commandant of Fort McHenry, to produce him in court, on the ground that he had been arrested contrary to the Constitution and laws of the United States. He stated that he had been taken from his bed at midnight by an armed force pretending to act under military orders from some person to him unknown.
The Chief Justice issued his writ and General Cadwalader sent his regrets by Colonel Lee, saying that the prisoner was charged with various acts of treason and that the arrest was made by order of General Keim, who was not within the limits of his command. He said further that he was authorized by the President of the United States to suspend the writ of habeas corpus for the public safety. He requested that further action be postponed until he could receive additional instructions from the President.