The Life of Lyman Trumbull

by Horace White

Judge Taney thereupon issued an attachment against General Cadwalader for disobedience to the high writ of the court. The next day United States Marshal Bonifant certified that he sent in his name from the outer gate of the fort, which he was not permitted to enter, and that the messenger returned with the reply that there was no answer to his card, and that he was thereupon unable to serve the writ. The Chief Justice then read from manuscript as follows:

1. The President, under the Constitution and laws of the United States, cannot suspend the privilege of the writ of habeas corpus, nor authorize any military officer to do so.

2. A military officer has no right to arrest and detain a person not subject to the rules and articles of war, for an offense against the laws of the United States, except in aid of the judicial authority and subject to its control, and if the party is arrested by the military, it is the duty of the officer to deliver him over immediately to the civil authority to be dealt with according to law.

The Chief Justice then remarked orally that if the party named in the attachment were before the court he should fine and imprison him, but that it was useless to attempt to enforce his legal authority, and he should, therefore, call upon the President of the United States to perform his constitutional duty and enforce the process of the court.

July 8, 1862, the House, after a brief debate, passed a bill reported by its Judiciary Committee directing the Secretaries of State and of War to report to the judges of the courts of the United States the names of all persons held as political prisoners, residing in the jurisdiction of said judges, and providing for their prompt release unless the grand jury should find indictments against them during the first term of court thereafter. The bill also authorized the President, during any recess of Congress, to suspend the privilege of the writ of habeas corpus throughout the United States, or any part thereof, in cases of rebellion, or invasion, where the public safety might require it, until the meeting of Congress. Mr. Bingham, of Ohio, who reported the bill, explained that the committee did not attempt to decide whether the right to suspend the writ of habeas corpus was vested in the executive or in the legislative branch of the Government. That was a matter of dispute, and the bill was intended to settle doubts, not theoretically but practically. If the right belonged to the Executive under the Constitution the passage of the bill would do no harm; if it belonged to Congress the bill would enable the President to exercise it legally. A motion to lay the bill on the table was negatived by a vote of 29 to 89, after which it was passed without a division.

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.