The Life of Lyman Trumbull

by Horace White

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.