I have woodpusher to thank for my response to you on this particular point.
" In 1863, Congress raised the number of justices to ten (10), so Lincoln could pack the Court with a fifth Lincoln appointee to ensure against legal disaster. After Andrew Johnson took office, in 1866 Congress reduced the number of justices to seven (7) by attrition, although never fell below eight (8), ensuring Democrat Johnson never got to appoint anybody. After Johnson left and Grant took office, Congress returned the number of justices to nine (9) in 1869, and enabled Grant to make an appointment.That about took care of Court opinions condemning Lincoln administration actions for much of his administration. "
[DiogenesLamp #491] Law is law, and you cannot create law by Presidential diktat.[Doodledawg #551] You mean laws like the Confiscation Acts passed in 1861 and 1862?
[DiogenesLamp #552] A law that violates constitutional law is not a law.
[Doodledawg #553] The constitutionality of the law was upheld by the Supreme Court in the Prize Cases.
[DiogenesLamp #556] I have woodpusher to thank for my response to you on this particular point.
On the very specific point of the Prize Cases, I do not believe that opinion has ever had the effect revisionist historians claim for it.
"THE PRIZE CASES"U.S. Supreme Court
THE AMY WARWICK, 67 U.S. 635, 670 (1862)
67 U.S. 635 (Black)THE BRIG AMY WARWICK.
THE SCHOONER CRENSHAW.
THE BARQUE HIAWATHA.
THE SCHOONER BRILLIANTE.December Term, 1862
* * *
Mr. Justice GRIER.
* * *
And finally, in 1861, we find Congress "ex majore cautela" and in anticipation of such astute objections, passing an act "approving, legalizing, and making valid all the acts, proclamations, and orders of the President, &c., as if they had been issued and done under the previous express authority and direction of the Congress of the United States."
Without admitting that such an act was necessary under the circumstances, it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that on the well known principle of law, "omnis ratihabitio retrotrahitur et mandato equiparatur," this ratification has operated to perfectly cure the defect.
That looks good, but what does it say? One needs to ignore 20th century revisionists and apply 19th century English to expose the glaring revision. Bear in mind, in 1862 the Court only quoted what it considered necessary for the issue before it. Be prepared to enter the twilight zone and see what revisionist historians did with it. Revisionist historians made an effort, largely successful, to fob this off as validating all the acts, proclamations, and orders of the President. It does not.
Think of it as [14 words] &c. [22 words].
Whatever is that &c.? In the 19th century, an ellipsis was indicated by &c., while today an ellipsis is indicated by [. . .], with or without the brackets. Sometimes it is indicated by * * *. An ellipsis means something is left out.
Separate the first 14 words from the last 22 words and you get the idea. But how much was edited out? One must identify and compare the legislative text to the Supreme Court quote.
The original attempt to save all of Lincoln's bacon was S.R. 1, the first bill of the session entered in the Senate.
Congressional Globe, Senate, 37th Congress, 1st Session, pg. 393
Proposed Senate Resolution S.R. 1, July 6, 1861
Mr. GRIMES. I ask that the resolution be read.The Secretary read it, as follows:
Joint resolution to approve and confirm certain acts of the President of the United States for suppressing insurrection and rebellion.
Whereas, since the adjournment of Congress on the 4th day of March last, a formidable insurrection in certain States of this Union has arrayed itself in armed hostility to the Government of the United States, constitutionally administered; and whereas the President of the United States did, under the extraordinary exigencies thus presented, exercise certain powers and adopt certain measures for the preservation of this Government—that is to say: First. He did, on the 15th day of April last, issue his proclamation calling upon the several States for seventy-five thousand men to suppress such insurrectionary combinations, and to cause the laws to be faithfully executed. Secondly. He did, on the 19th day of April last, issue a proclamation setting on foot a blockade of the ports within the States of South Carolina, Georgia, Alabama, Florida. Mississippi, Louisiana, and Texas. Thirdly. He did, on the 27th day of April last, issue a proclamation establishing a blockade of the ports within the States of Virginia and North Carolina. Fourthly. He did, by an order of the 27th day of April last, addressed to the Commanding General of the Army of the United States, authorize that officer to suspend the writ of habeas corpus at any point on or in the vicinity of any military line between the city of Philadelphia and the city of Washington. Fifthly. He did, on the 3d day of May last, issue a proclamation calling into the service of the United States forty-two thousand and thirty-four volunteers, increasing the regular Army by the addition of twenty-two thousand seven hundred and fourteen men, and the Navy by an addition of eighteen thousand seamen. Sixthly, he did, on the 10th day of May last, issue a proclamation authorizing the commander of the forces of the United States on the coast of Florida to suspend the writ of habeas corpus, if necessary. All of which proclamations and orders have been submitted to this Congress: Now, therefore—
Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That all of the extraordinary acts, proclamations, and orders, hereinbefore mentioned, be, and the same are hereby, approved and declared to be in all respects 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: Provided, That nothing herein contained shall be construed asf authorizing a permanent increase of the Army or Navy.
S.R. 1 was impressive in its scope. It was shot down in flames. Notice the hereinbefores did not include the Confiscation Act, but did include habeas corpus and the callup of 75,000 troops with no funding authorization. The Congress flatly refused to approve Lincoln's acts to suspend habeas corpus, or to pretend to approve his delegation of his imaginary power to do so to military officers. The Senate struggled with that resolution from the opening day, but was unable to pass it. In the end, Senator Trumbull refused to permit a vote on the resolution. There were no votes for or against. It crashed and burned on August 5, 1861 in the Senate, as shown at Congressional Globe, 37th Cong., 1st Sess, pg 453:
Mr. WILSON. Let us have a vote.Mr. TRUMBULL. Now my friend is clamorous. He cannot keep still. He says "let us have a vote." I am not disposed to vote upon the resolution, and it not going to pass without consideration. It is not going to pass in the shape it is by my approbation.
Mr. Lincoln's allies could not allow a vote on S.R. 1 as it would have greatly embarrassed the President. In view of what the Senate flatly refused to even take to a vote on August 5, 1861, despite the session about to close on August 6, it is not rationally possible to conclude they passed something immediately thereafter which ratified all the acts, proclamations and orders of the President. As S.R. 1 could not pass, we must examine what did pass.
S. 72, to increase the pay of the privates in the regular army, and in the volunteers in the service of the United States was, in Obamacare fashion, amended to repurpose it to save at least a strip or two of Lincoln's bacon. The amendment shown here was brought up after S.R. 1 failed.
Journal of the Senate of the United States of America, 1789-1873
MONDAY, August 5, 1861.
Page 186 | Page imageMr. Wilson asked, and by unanimous consent obtained, leave to bring in a bill (S. 72) to increase the pay of the privates in the regular army, and in the volunteers in the service of the United States; which was read the first and second times, by unanimous consent, and considered as in Committee of the Whole.
On motion by Mr. Wilson, to amend the bill by inserting as an additional section the following--
- Sec. 3. And be it further enacted, That all the acts, proclamations, and orders of the President of the United States, after the fourth of March, 1861, respecting the army and navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved, and in all respects legalized and made 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,
- It was determined in the affirmative,
- Yeas ... 37
- Nays ... 5
On motion by Mr. Breckinridge,
The yeas and nays being desired by one-fifth of the senators present,
Those who voted in the affirmative are,
Messrs. Anthony, Bingham, Browning, Carlile, Chandler, Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Hale, Harlan, Harris, Howe, Johnson, of Tennessee, King, Lane, of Indiana, Lane, of Kansas, Latham, McDougall, Morrill, Pomeroy, Rice, Sherman, Simmons, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, Willey, Wilmot, Wilson.
Those who voted in the negative are,
Messrs. Breckinridge, Bright, Kennedy, Pearce, Powell.
No further amendment being proposed, the bill was reported to the Senate, and the amendment made as in Committee of the Whole was concurred in.
Ordered, That the bill be engrossed and read a third time.
The said bill was read the third time by unanimous consent.
Resolved, That it pass.
On motion by Mr. Wilson, the title was amended to read: An act to increase the pay of the privates in the regular army and in the volunteers in the service of the United States, and for other purposes.
Ordered, That the Secretary request the concurrence of the House of Representatives therein.
On August 6th, in the House, there was some consternation as they had passed S. 72 the day before, without the amendment.
Congressional Globe, 37th Cong., 1st Sess., August 6, 1861 (House), pg. 456
INCREASE OF PRIVATES’ PAY.Mr. STEVENS. I move to take from the Speaker’s table Senate bill No. 72, to increase the pay of the privates in the regular Army, and in the volunteers in th£ service of the United States, and for other purposes.
Mr. CRISFIELD. I object to the consideration of that bill.
Mr. STEVENS. I hope gentlemen will not object. If the bill cannot be passed now, there will be a called session within twenty-four hours.
Mr. VALLANDIGHAM. I desire to ask the chairman of tho Committee of Ways and Means a question in reference to this bill. I desire to knowhow this bill comes back here, after the House passed it yesterday?
Mr. STEVENS. This is a new bill.
The SPEAKER. It is an original Senate bill.
Mr. VALLANDIGHAM. I do not understand the matter yet.
The SPEAKER. The Senate has just sent this bill to the House, and asks the concurrence of the House in it.
Mr. VALLANDIGHAM. We concurred in a similar bill yesterday.
Mr. MORRILL, of Vermont. I will inform the gentleman, by leave of the House. I believe this is identically the bill that passed the House, with this exception: that, instead of increasing the pay of privates four dollars per month, this bill increases it but two dollars per month. I suppose that if this bill should not pass, Congress would be called back.
Mr. VALLANDIGHAM. It is very easy for the House to recede from its amendment to the bill passed yesterday; and that will leave it all right.
Mr. STEVENS. That bill, with the amendments, was lost in the Senate.
Mr. CRISFIELD. I have objected to it.
The House figured it out and passed the bill. Some sort of authorization was needed to keep the 75,000 troops in the army.
Congressional Globe, 37th Cong., 1st Sess., August 6, 1861 (House), pg. 457
INCREASED PAY OF PRIVATES, ETC.Mr. STEVENS. I again appeal to the gentleman who objected to the consideration of the bill for increasing the pay of privates in the regular Army and of volunteers, to withdraw that objection. I understand the bill passed by this House was laid on the table in the Senate. This is a new bill which has passed the Senate, and if we adjourn without passing it, it will cause very great inconvenience, and perhaps create the necessity of our being called back in another extra session.
Mr. CRISFIELD. I withdraw my objection.
Mr. JOHNSON. I object.
Mr. STEVENS. I move to suspend the rules.
The question was taken; and the rules were suspended, (two thirds having voted therefor.)
The bill was thereupon taken up for consideration. It proposes to increase the pay of the privates to thirteen dollars a month; and also extends the provisions of the act “for the relief of the Ohio and other volunteers” to all volunteers, no matter for what term of service they may have been accepted. It also directs that all the acts, proclamations, and orders, of the President of the United States, after the 4th of March, 1861, respecting the Army and Navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved and in all respects legalized and made 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 bill was read a first and second time, and was ordered to a third reading. It was read the third time, and passed.
Mr. STEVENS moved to reconsider the vote by which the bill was passed; and also moved to lay the motion to reconsider on the table.
The latter motion was agreed to.
The Supreme Court in the Prize Cases stated:
And finally, in 1861, we find Congress "ex majore cautela" and in anticipation of such astute objections, passing an act "approving, legalizing, and making valid all the acts, proclamations, and orders of the President, &c., as if they had been issued and done under the previous express authority and direction of the Congress of the United States."
S. 72 stated (as amended and passed):
Sec. 3. And be it further enacted, That all the acts, proclamations, and orders of the President of the United States, after the fourth of March, 1861, respecting the army and navy of the United States, and calling out or relating to the militia or volunteers from the States, are hereby approved, and in all respects legalized and made 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,
Remember [14 words] &c. [22 words]?
You may now think of it as [14] words [52 words left out] [22 words].
What was ratified after the fact were the orders issued after the 4th of March respecting the army and navy of the United States, and calling out or relating to the militia or volunteers from the States. The crucial item was the military as Lincoln kept Congress out of session from March until July while activating troops with no funding authorization. He almost lost his 75,000-man army.
What Congress explicitly refused to ratify was the habeas corpus actions.
At issue before the Court in the Prize Cases was whether the war was lawful and whether the callup of troops, absent a funding authorization from Congress, was lawful.
The Court quote in the Prize Cases was sufficient for the purpose of the Court in that case. What the revisionists did was seize upon the Court quote, ignore the legislation, and make believe the 52 words elided by the Court were never there, and that the &c. was merely an odd decoaration in the middle of the text. The elided words were not important to the Court in The Prize Cases. However, they are deadly to the claims of the revisionist historians claims that the legislation extended to all the acts, proclamations and orders of the President.
Also, S. 72 of August 6, 1861 12 Stat. 326 could hardly have been considering the Confiscation Act of August 6, 1861 12 Stat. 319.
The Prize Cases was an 1862 decision.
Just look at how the Lincoln appointees voted in Texas V White.
I’ve got it! We’ll just use force to pack the court. Then when the court rules the way we want, we can say “see??? It was all good and constitutional-like. The court said so.”