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.