FOOTNOTES:

FOOTNOTES:[56]E. Corning & Co., of Albany, were dealers in stoves and hardware.[57]House Report no. 2, 37th Congress, 2d Session, p. 390. Cummings reappears in Welles'sDiary, near the close of Andrew Johnson's Administration, as a favored candidate for the office of Commissioner of Internal Revenue. The report of the Committee on Government Contracts had been forgotten or only vaguely remembered. Welles had a dim recollection that Cummings had a spotted record, and he warned Johnson against him. Seward indorsed him, however; said he was "a capital man for the place—no better could be found." (Diary of Gideon Wells,iii, 414.)[58]Cong. Globe, February, 1862, p. 710.[59]Cong. Globe, January. 1862, p. 208.[60]Cong. Globe, April, 1862, p. 1841.[61]Cong. Globe, February, 1862, p. 712.[62]Lincoln and Men of War Time, p. 165.[63]Dawes,Cong. Globe, April, 1862, p. 1841.[64]Congressional Record, 43d Cong., 1st Sess., p. 3434.

[56]E. Corning & Co., of Albany, were dealers in stoves and hardware.

[57]House Report no. 2, 37th Congress, 2d Session, p. 390. Cummings reappears in Welles'sDiary, near the close of Andrew Johnson's Administration, as a favored candidate for the office of Commissioner of Internal Revenue. The report of the Committee on Government Contracts had been forgotten or only vaguely remembered. Welles had a dim recollection that Cummings had a spotted record, and he warned Johnson against him. Seward indorsed him, however; said he was "a capital man for the place—no better could be found." (Diary of Gideon Wells,iii, 414.)

[58]Cong. Globe, February, 1862, p. 710.

[59]Cong. Globe, January. 1862, p. 208.

[60]Cong. Globe, April, 1862, p. 1841.

[61]Cong. Globe, February, 1862, p. 712.

[62]Lincoln and Men of War Time, p. 165.

[63]Dawes,Cong. Globe, April, 1862, p. 1841.

[64]Congressional Record, 43d Cong., 1st Sess., p. 3434.

ARBITRARY ARRESTS

The jaunty manner in which Secretary Seward administered the laws respecting the liberty of the citizen in the earlier years of the war is treated by John Hay with a humorous touch under date October 22, 1861:

To-day Deputy Marshal came and asked what he should do with process to be served on Porter in contempt business. I took him over to Seward and Seward said: "The President instructs you that thehabeas corpusis suspended in this city at present, and forbids you to serve any process upon any officer here." Turning to me: "That is what the President says, is it not, Mr. Hay?" "Precisely his words," I replied; and the thing was done.[65]

Prior to the assembling of Congress in July, 1861, the President had given to General Winfield Scott authority in writing to suspend the privilege of the writ ofhabeas corpusat any point on the line of the movement of troops between Philadelphia and Washington City. Without other authority Seward began to issue orders for the arrest and imprisonment of persons suspected of disloyal acts or designs, not only on the line between Philadelphia and Washington City, but in all parts of the country.

When the special session of Congress began, Senator Wilson, Chairman of the Committee on Military Affairs, introduced a joint resolution to declare these and other acts of the President "legal and valid to the same intent and with the same effect as if they had been issued anddone under the previous express authority and direction of the Congress of the United States." The clause of the Constitution which says that the privilege of the writ ofhabeas corpusshall not be suspended unless when, in cases of rebellion or invasion, the public safety may require it, does not say in what mode, or by what authority, it may be suspended.

Straightway there were differences of opinion as to the lodgment of the power to suspend, whether it was in the executive or in the legislative branch of the Government. Other differences cropped up as to the phraseology of the Wilson Resolution and its legal intendment. It might be construed as an affirmance by Congress that the President's act suspending the writ was lawful at the time when he did it, or, on the other hand, that it became lawful only after Congress had so voted, and hence was unlawful before. These diversities of opinion were very tenaciously held by different members of the Senate and House, of equal standing in the legal profession. The result was that Wilson's joint resolution was debated at great length, but did not pass. Instead of it an amendment was added to one of the military bills declaring that all acts, proclamations, and orders of the President after the 4th of March, 1861, respecting the army and navy, should stand approved and legalized as if they had had the previous express authority of Congress; and the bill was passed as amended. This was understood to be a mere makeshift for the time being.

The general question was again brought to the attention of Congress by Trumbull, December 12, 1861, when he introduced in the Senate the following resolution:

Resolved, that the Secretary of State be directed to inform the Senate whether, in the loyal states of the Union, any person or persons have been arrested by orders from him or hisdepartment; and if so, under what law said arrests have been made and said persons imprisoned.

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 punishrebel 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?

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 ofhabeas corpusby 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 ofhabeas corpusappertains 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 ofhabeas corpusfor the public safety. He requested that further action be postponed until he could receive additional instructions from the President.

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 ofhabeas 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 isarrested 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.

1. The President, under the Constitution and laws of the United States, cannot suspend the privilege of the writ ofhabeas 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 isarrested 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 ofhabeas corpusthroughout 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 ofhabeas corpuswas 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 ofhabeas 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 ofStanton'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 ofhabeas 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 suspendthe writ ofhabeas corpuswas 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 ofhabeas corpusought 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 theHabeas CorpusBill, which was still pending between the two houses. Thereport 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 ofhabeas corpusas 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 12.40a.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 ofhabeas corpusor 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 1.53a.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 madeanother 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 doubtthat the passage of the bill was accomplished by the sharp practice of Pomeroy; but it wasdamnum 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 ofhabeas corpusresides 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) thatthe 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 proceedingsin 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 ofhabeas 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 YorkTribunedeprecated, in no queruloustone, 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 YorkWorldin his department and stopping the publication of the ChicagoTimes. Brigadier-General Ammen was charged with the execution of the latter order. On the following day, Ammen notified Wilbur F. Storey, the editor of theTimes, 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 theTimesuntil 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 Ihave 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 theTimesat 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 theTimeswas 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 theTimes. 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 ChicagoTimeshad 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 ChicagoEvening Journalpublished 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, toestablish 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 ChicagoTimes.[66]

FOOTNOTES:[65]Letters and Diaries,i, 47.[66]The New YorkTribune, June 6, said: "We trust the great majority of considerate and loyal citizens share the relief and satisfaction we feel in view of the President's course in revoking the order of General Burnside which directs the suppression of the ChicagoTimes. And we further trust that the zealous and impulsive minority, who would have had General Burnside's order sustained, will, on calm reflection, realize and admit that the President has taken the wiser and safer course. We cannot reconcile the decision of the Executive in this case with his action in regard to Vallandigham. Journalists have no special license to commit treason, and Vallandigham's sympathy with the rebels was neither more audacious nor more mischievous than that of theTimes. Yet it is better to be inconsistently right than consistently wrong—better to be right to-day, though wrong yesterday, than to be wrong both days alike."

[65]Letters and Diaries,i, 47.

[66]The New YorkTribune, June 6, said: "We trust the great majority of considerate and loyal citizens share the relief and satisfaction we feel in view of the President's course in revoking the order of General Burnside which directs the suppression of the ChicagoTimes. And we further trust that the zealous and impulsive minority, who would have had General Burnside's order sustained, will, on calm reflection, realize and admit that the President has taken the wiser and safer course. We cannot reconcile the decision of the Executive in this case with his action in regard to Vallandigham. Journalists have no special license to commit treason, and Vallandigham's sympathy with the rebels was neither more audacious nor more mischievous than that of theTimes. Yet it is better to be inconsistently right than consistently wrong—better to be right to-day, though wrong yesterday, than to be wrong both days alike."

INCIDENTS OF THE YEARS 1863 AND 1864

James W. White, of New York City, writes, March 6, to ask Trumbull, as a member of the Seward Committee, whether it is a fact that President Lincoln had knowledge of the dispatches written by Secretary Seward to Minister Adams, dated April 10, 1861, and July 5, 1862, before they were sent, and whether he approved the same.

This refers to an event which very nearly upset President Lincoln's Cabinet in the beginning of 1863. Secretary Seward had entered the Cabinet under strong suspicions of lukewarmness toward the war policy of the President, which suspicions were shared by the Republican Senators generally. Consequently they were prepared to believe that the want of success which attended the Union arms was due to a lack of earnestness at headquarters, and that the man who paralyzed Lincoln was the Secretary of State. While this feeling was rankling in many bosoms, and especially among those who had considered the Executive remiss in dealing with the slavery question, the official correspondence of the State Department of the preceding year came from the press, containing, among other letters, one from Seward to Minister Adams dated July 5, 1862, with the following words:

It seems as if the extreme advocates of African slavery and its most vehement opponents were acting in concert together to precipitate a servile war—the former by making the most desperate attempts to overthrow the Federal Union, the latter by demanding an edict of universal emancipation as a lawful and necessary, if not, as they say, the only legitimate way of saving the Union.

Probably this was a private note, which got into the published volume by mistake, but it was oil on the flames in 1863, and it became public simultaneously with the news of General Burnside's defeat at Fredericksburg. These were among the darkest hours of the war. The Republican Senators thought that the rebellion would never be put down unless Seward were forced out of the Cabinet and that now was the time to act. A caucus was held and a committee appointed, of which Senator Collamer was chairman, to visit the President and express the opinion that Mr. Seward had lost the confidence of Congress and the country, and that his resignation was necessary to a successful prosecution of the war. Trumbull was one of the members of the committee.

Seward's unlucky letter, which formed the occasion of Judge White's communication to Trumbull, was written shortly before Lincoln's preliminary proclamation of emancipation as to slaves in the rebel states was published. Senator Sumner took the letter to the President and asked if he had ever given his sanction to it. He replied that he had never seen it before. The newspapers got hold of this fact and made it hot for Seward. The New YorkTimes, however, denied, apparently by authority, that Seward had ever sent any dispatch to a foreign minister without first submitting it to the President and getting his approval of it. Such a denial would be technically correct if this letter were a private communication, not intended for the public archives. Judge White, in a public letter, maintained that Seward never had submitted this letter to his chief, thus raising a question of veracity with theTimes. So he wrote the foregoing letter to Trumbull hoping to find a backer in him. Trumbull replied in the following terms:

Pressing engagements and an indisposition to become involved in the controversy to which your letter of the 6th alludes must be my apology for not sooner replying to your inquiries. The want of harmony, not to say the antagonism, between some of the dispatches referred to and the avowed policy of the President would seem to afford sufficient evidence to a discerning public that both could not have emanated from the same mind. In view, therefore, of the manner in which the information in my possession was obtained, and not perceiving at this time that the public good would be subserved by any disclosure I could make, I must be excused for not undertaking to furnish extraneous evidence in the matter.

The accusations of the senatorial committee against Seward were summarized by Lincoln truthfully and with a touch of humor. "While they seemed to believe in my honesty," he said, "they also appeared to think that whenever I had in me any good purpose Seward contrived to suck it out unperceived." Seward was no more to blame for the ill success of the Union armies than any other member of the Cabinet. The inefficiency in our armies, according to Gideon Welles, resided in the President's chief military adviser, General Halleck. However that may have been, it is well that the errand of the Republican Senators to the White House proved fruitless, since, if successful, it might have created a precedent which would have upset our form of government.

G. Koerner, Minister to Spain, writes from Madrid, March 22, 1863, that he is very much discouraged about the prospects of the war. He trusts more to the exhaustion of the South than to the victories of the North.

My situation, under the circumstances, has been a very unpleasant one. For days and weeks I have avoided meetings and reunions where I would have had to answer questions, often meant in a very friendly manner, but still embarrassing to me. My family has also lived very retired, for the additional reason that we are not able to return the many hospitalities to which we are invited constantly. We have the greatest troublein the world to live here in the most modest manner within our means. We forego many, very many, of the comforts we were accustomed to at home.

From Columbus, Georgia, October 26, 1863, Alfred Iverson (former Senator), trusting that the difficulties in which the two sections are involved may not have extinguished the feelings of courtesy and humanity in the hearts of individual gentlemen, writes, at the instance of an anxious mother, to make inquiries in reference to Charles G. Flournoy, supposed to have been captured with other Confederate soldiers by General Grant's forces in the vicinity of Vicksburg, and to be confined in a military prison at Alton, Illinois.

Walter B. Scates (former judge of the supreme court of Illinois, Democrat, now serving as assistant adjutant-general in the Thirteenth Army Corps) writes from New Orleans, November 14, 1863, that he is thoroughly convinced of the propriety and necessity of destroying slavery as a means of ending this most wicked war and preventing a recurrence of a like misfortune; is ready to take an active part in the organization of colored regiments, that they may assist in maintaining the Government and winning their own freedom.

From Topeka, Kansas, November 16, John T. Morton remonstrates against the appointment of M. W. Delahay as judge of the United States District Court, because he is utterly incompetent. Says he gave up the practice of his profession in Illinois because he was so ignorant that nobody would employ him. O. M. Hatch confirms Morton; says the appointment is unfit to be made; has known Delahay personally for twenty years. Jesse K. Dubois and D. L. Phillips confirm Hatch.

Jackson Grimshaw writes from Quincy, December 3:

Will the Senate confirm that miserable man Delahay for Judge in Kansas? The appointment is disgraceful to the President, who knew Delahay and all his faults, but the disgrace to the Administration will be greater if the Senate confirms him. He is no lawyer, could not try a case properly even in a Justice's court and has no character. Mr. Buchanan in his worst days never made so disgraceful an appointment to the bench.

Herndon relates that Delahay's expenses to the Chicago nominating convention, as an expected delegate from Kansas, were promised by Lincoln. He was not a delegate and never had the remotest chance of being one, but he came as a "hustler" and Lincoln paid his expenses all the same. He was nevertheless appointed judge, was impeached by Congress in 1872 under charges of incompetency, corruption, and drunkenness on and off the bench, and resigned while the impeachment committee was taking testimony.

Major-General John M. Palmer writes from Chattanooga, December 18, 1863:

The Illinois troops (now voters) are beginning to talk about the Presidency. Mr. Lincoln is by far the strongest man with the army, and no combination could be made which would impair his strength with this army unless, perhaps, Grant's candidacy would. The people of Tennessee would now vote for Lincoln, it is thought by many. Andy Johnson is understood to be a Presidential aspirant by most people in this state. He is not as popular as I once thought he was, though if he will exert himself to do so he can be Governor, or Senator, when the state is reorganized. He is understood to favor emancipation, and the people are prepared for it, but I fear personal questions will complicate the matter. The truth is all these Southern politicians are behind the times sadly. There is nothing practical about them. Now, when the whole social and political fabric is broken up, new foundations might be laid for institutions which would in their effects within twenty years compensate the State for all its losses, heavy as they are. But not much will be done, I fear, because the politicians don't seem to know what isrequired. One fourth of the people are destitute, and yet the leaders have not humanity and energy enough to induce them to organize for mutual assistance. There are farms enough in middle Tennessee deserted by their rebel owners to give temporary homes to thousands, and yet no one will take the responsibility of putting them in possession, but the leaders quietly suffer the poor to wander homeless all over the country.

Colonel Fred Hecker writes from Lookout Valley, Tennessee, December 21:

Again we are encamped in Lookout Valley after heavy fighting and marching from November 22 to December 16, stopping a victorious march at the gates of Knoxville, returning with barefooted, ragged men, but cheerful hearts. This was more than a fight. It was a wild chase after an enemy making no stand, leaving everywhere in our hands, muskets, cannon, ammunition, provisions, stores, etc., and large numbers of prisoners. These, as well as the populations, were unanimous in declaring that the people of the South are tired of the war and rebellion and are in earnest in the desire for peace and order. I conversed much with men of different positions in life, education, and political parties, from the enraged secessionist to the unwavering Union man just returning from his hiding-place, and I am fully convinced that most of the work is done. A great many had no idea what war was till both armies, passing over the country, had taught them the lesson, and there is such a prevailing union feeling in North Carolina, northern Alabama, and Georgia, as I have ascertained in a hundred conversations with men of that section of the country, that the result of the next campaign is not the least doubtful. You remember what I told you about General Grant at a time when this excellent man was pursued by malice and slander. I feel greatly satisfied that his enemies are now forced to do him justice. The battle of Chattanooga, with all its great consequences, was a masterpiece of planning and manœuvring, and every man of us is proud to have been an actor in this ever memorable action. Revolution and war sift men and consume reputations with the voracity of Kronos, and it is good that it is so.

From Chattanooga, January 24, 1864, Major-General John M. Palmer writes:

I saw Grant yesterday and had a conversation with him. Peace-at-any-price men would have a hard bargain in him as their candidate. He is a soldier and, of course, regards negroes at their value as military materials. He has just enough sentiment and humanity about him to make him a careful general, and he esteems men, black or white, as too valuable to be wasted. He does not desire to be a candidate for the Presidency; prefers his present theatre of service to any other. Nor will the officers of the army willingly give him up. He has no enemies, and it is very difficult to understand how he can have any. He is honest, brave, frank, and modest. Is perfectly willing that his subordinates shall win all the reputation and glory possible; will help them when he can, with the most unselfish earnestness. He demands no adulation, and gives credit for every honest effort, and if efforts are unsuccessful he has the sense, and the sense of justice, to understand the reasons for failure and to attach to them their proper importance. Nobody is jealous of Grant and he is jealous of no one. He is not a great man. He is precisely equal to his situation. His success has been wonderful and must be attributed, I think, to his fine common sense and the faculty he possesses in a wonderful degree of making himself understood. I do not think he will be anybody's candidate for the Presidency this time, but after that his stock will be at a premium for anything he wants. Mr. Lincoln is popular with the army, and will, as far as the soldiers can vote, beat anything the Copperheads can start. No civilian or mere book-making general can get votes in the army against him.

J. K. Dubois, Springfield, January 30, says:

We are receiving daily old regiments who are reënlisting and are sent home on furlough for thirty days to see their friends and recruit. This is very damaging to the Copperhead crew of our state. They swear and groan over this fact, for they have preached and affirmed that the soldiers were held in subjection by their officers, and that as soon as their time was up they would show their officers and the President that they wouldhave nothing more to do with this Abolition crusade. And so when these same men's time will have expired, commencing next June, they say to rebels both front and rear: "We were at the beginning of this fight and we intend also to be at the end." All honor to these brave and loyal men.

Israel B. Bigelow, Brownsville, Texas, May 5, 1864, says that before the war it was commonly said that soil and climate would regulate slavery.

In theory this was right if slavery was right, and whether right or wrong, slavery is declining, and with my very hearty concurrence—to my own astonishment. No man ever regarded a Massachusetts Abolitionist with greater abhorrence than myself, and yet I have subscribed to Mr. Lincoln's ironclad oath. Time works wondrous changes in men's feelings, and there are thousands of slaveholders in this state who, two years ago, cursed Mr. Lincoln and his Government, who are now willing to have their slaves freed if the war can be brought to an end.

We now come upon the first evidence of any difference, of a personal kind, existing between Senator Trumbull and President Lincoln. Opposing views on questions of public policy, such as the Confiscation Bill and arbitrary arrests, have already been noted. A difference of another kind is disclosed in a letter from N. B. Judd, Minister to Prussia. Judd had returned to his post after a visit to this country. He wrote to Trumbull under date, Berlin, January, 1864:

When I last saw you your conviction was that L. would be reëlected. I tell you combinations can't prevent it. Events possibly may. But until some event occurs, is it wise or prudent to give an impression of hostility for no earthly good? Usually your judgment controls your feelings. Don't let the case be reversed now. Although a severe thinker you are not constitutionally a croaker. Excuse the freedom of my writing. I have given you proofs that I am no holiday friend of yours.

The next piece of evidence found is a letter from Trumbullhimself to H. G. McPike, of Alton, Illinois, one of the few letters of which he kept a copy in his own handwriting:

Washington, Feb. 6, 1864.The feeling for Mr. Lincoln's reëlectionseemsto be very general, but much of it I discover is only on the surface. You would be surprised, in talking with public men we meet here, to find how few, when you come to get at their real sentiments, are for Mr. Lincoln's reëlection. There is a distrust and fear that he is too undecided and inefficient to put down the rebellion. You need not be surprised if a reaction sets in before the nomination, in favor of some man supposed to possess more energy and less inclination to trust our brave boys in the hands and under the leadership of generals who have no heart in the war. The opposition to Mr. L. may not show itself at all, but if it ever breaks out there will be more of it than now appears. Congress will do its duty, and it is not improbable we may pass a resolution to amend the Constitution so as to abolish slavery forever throughout the United States.

Washington, Feb. 6, 1864.

The feeling for Mr. Lincoln's reëlectionseemsto be very general, but much of it I discover is only on the surface. You would be surprised, in talking with public men we meet here, to find how few, when you come to get at their real sentiments, are for Mr. Lincoln's reëlection. There is a distrust and fear that he is too undecided and inefficient to put down the rebellion. You need not be surprised if a reaction sets in before the nomination, in favor of some man supposed to possess more energy and less inclination to trust our brave boys in the hands and under the leadership of generals who have no heart in the war. The opposition to Mr. L. may not show itself at all, but if it ever breaks out there will be more of it than now appears. Congress will do its duty, and it is not improbable we may pass a resolution to amend the Constitution so as to abolish slavery forever throughout the United States.

The third scrap is a letter from Governor Yates to Trumbull dated Springfield, February 26, to whom, perhaps, McPike showed Trumbull's letter quoted above. Yates writes:

As you are a Senator fromIllinois, the state of Mr. Lincoln, please be cautious as to your course till I see you. I have such strong regard for you personally that I do not wish either enemies or friends on our side, who would like to supplant you, to get any undue advantage over you.

Trumbull believed there was a lack of efficiency in the use made, by the executive branch of the Government, of the means placed at its disposal for putting down the rebellion. That such was his opinion was made clear by his participation in the anti-Seward movements of the previous year. Whether the opinion was justified or not, it was so generally entertained in Washington that if the nomination had rested in the hands of the Senators andRepresentatives in Congress, Lincoln would have had very few votes in the Baltimore Convention. Albert G. Riddle describes a scene in the White House in February, 1864, illustrative of public sentiment in Washington at that time. The reception room of the Executive Mansion was filled with persons, most of whom were inveighing against Lincoln, who was not present. The one most loud and bitter against the President was Henry Wilson, of Massachusetts. His assaults were so amazing that Riddle cautioned him to choose some other place than the Executive Mansion for uttering them; advised him to make his speeches in the Senate, or get himself elected to the coming National Union Convention and then denounce Lincoln, where his words might have some effect. Wilson replied that he knew the people were for Lincoln and that nothing could prevent his renomination.[67]

The opposition was based wholly upon charges of inefficiency and lack of earnestness and vigor in the prosecution of the war. But the feeling, both among the people at home and the soldiers in the field, was so overwhelmingly for Lincoln, that when the delegates came together in convention the opposition in Congress was silenced. After the nominations of both parties had been made, however, the previous distrust reappeared on a larger scale and became so pronounced that Lincoln himself thought that he was about to be defeated and took steps to turn the Government over to McClellan practically before the constitutional period for his own retirement.[68]If Lincoln himself was in despair, other persons who shared his gloom might be excused.

The radicals who were opposed to Lincoln held a convention in the city of Cleveland on the 31st of May, 1864,and nominated General John C. Frémont for President and General John Cochrane for Vice-President. Among the leaders in this movement were B. Gratz Brown, of Missouri, Wendell Phillips, of Massachusetts, and Rev. George B. Cheever, of New York. They had the sympathy of Ben Wade, of Ohio, and Henry Winter Davis, of Maryland, and they reckoned upon the support of many radical Germans of the fiery type, perhaps sufficiently numerous to turn the votes of some important Western States. On the 21st of September, Frémont withdrew as a candidate and on the 23d the President asked for the resignation of Montgomery Blair as Postmaster-General, which the latter immediately gave. The simultaneous retirement of Frémont and Blair, who were known to be enemies to each other, led to a suspicion that there was some connection between the two events. The account given by Nicolay and Hay conveys no hint of this, but is confused and self-contradictory. Evidence is available to indicate that Frémont made his retirement conditional upon the removal of Blair from the Cabinet, and that Lincoln, although reluctant to lose Blair from his official family, deemed it a necessity to get the third ticket out of the presidential contest, for public reasons.[69]

In the Senatorial contest of 1867 the false accusation was made that Trumbull had refused to make speeches in favor of Lincoln's reëlection; whereas he was the leading speaker at the great Union Mass Meeting at Springfield on the 5th of October, 1864, which was addressed by Doolittle, Yates, and Logan also. His correspondenceshows that he spoke at several other places during that month.

But speech-making did not gain the victory in the election of 1864. That fight was won by General Sherman at Atlanta, aided by General Sheridan in the Valley of Virginia, and by Admiral Farragut at Mobile.

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