There was a struggle in executive session of the Senate, lasting four days, over the confirmation of Cameron as Minister to Russia. Trumbull took the lead in opposition. He considered it an immoral act, like giving to an unfaithful servant a "character" and exposing society to new malfeasance at his hands. He believed and said that the new office conferred upon him would serve simply as whitewash to enable him to recover his seat in the Senate, and that that was the reason why he wanted the mission to Russia.
Sumner, the Chairman of the Committee on Foreign Relations, had been much impressed by Cameron"s anti-slavery zeal. As soon as the nomination came in, he moved that it be confirmed unanimously and without reference to any committee, which was the usual custom in cases where ex-Senators of good repute were nominated to office. Objection being made, the nomination went over. This was the day on which Dawes made his speech in the House. Sumner saw the speech, called Cameron"s attention to it, and asked what answer should be made to such accusations. Cameron replied that he had never made a contract for any kind of army supplies since he had been Secretary of War, but had left all such business to the heads of bureaus charged with such duties, and had never interfered with them.
On the 15th he put this statement in writing and addressed it to Vice-President Hamlin:--
I take this occasion to state that I have myself not made a single contract for any purpose whatever, having always interpreted the laws of Congress as contemplating that the heads of bureaus, who are experienced and able officers of the regular army, shall make all contracts for supplies for the branches of the service under their care respectively.
So far I have not found any occasion to interfere with them in the discharge of this portion of their responsible duties.
I have the honor to be, respectfully, your obedient servant,
SIMON CAMERON.
HON. H. HAMLIN, President of the Senate of the United States.
In reply Dawes produced doc.u.ments to show that there were then outstanding contracts, made by Cameron himself, for 1,836,900 muskets and rifles, and for only 64,000 by the Chief of Ordnance, the officer charged with that duty, and that on the very day when the letter to Hamlin was written, Cameron made a contract, against the advice of the Chief of Ordnance, for an unlimited number of swords and sabres--all that a certain Philadelphia firm could produce in a given time. This was done after he had resigned and before his successor, Stanton, had been sworn in.[63]
Cameron was confirmed as Minister to Russia on the 17th, by a vote of 28 to 14. The Republican Senators who voted against confirmation were Foster, Grimes, Hale, Harlan, Trumbull, and Wilkinson. Trumbull handed me this list of names for publication, saying that all of them desired to have it published.
Cameron remained abroad until time and more exciting events had cast a kindly shadow on his record. He then came home and a few years later was reelected to the Senate. When the attack was made on his dear friend Sumner, which ended in displacing him from the chairmanship of the Committee on Foreign Relations, which he had held ten years, Cameron retreated to a Committee room, as to a cyclone cellar, where he remained until the deed was done, leaving Trumbull, Schurz, and Wilson to fight the battle for his dear friend. Then he returned and sat down in the chair thus made vacant. He subsequently explained that he did so because his name was the next one to Sumner"s on the committee list.[64]
FOOTNOTES:
[56] E. Corning & Co., of Albany, were dealers in stoves and hardware.
[57] House Report no. 2, 37th Congress, 2d Session, p. 390. c.u.mmings reappears in Welles"s _Diary_, 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 c.u.mmings 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.
CHAPTER XII
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 the _habeas corpus_ is 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 a.s.sembling of Congress in July, 1861, the President had given to General Winfield Scott authority in writing to suspend the privilege of the writ of _habeas corpus_ at 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 and done under the previous express authority and direction of the Congress of the United States." The clause of the Const.i.tution which says that the privilege of the writ of _habeas corpus_ shall 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 pa.s.s. 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 pa.s.sed 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 his department; 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 inst.i.tute 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 const.i.tutional liberty. I am engaged, and the people whom I represent are engaged, in the maintenance of the Const.i.tution and the rights of the citizens under it. We are fighting for the Government as our fathers made it. The Const.i.tution 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 a.s.sume 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 Const.i.tution 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 Ma.s.sachusetts, 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 a.s.signing any cause, or giving the party arrested any opportunity of defense, are flagrant violations of the Const.i.tution, 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 Const.i.tution 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.
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 ma.n.u.script as follows:
1. The President, under the Const.i.tution 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 const.i.tutional duty and enforce the process of the court.