Your opinion only. The Supreme Court never gainsaid what President Lincoln did. And they are the only body with any standing to do so.
But consider:
“We begin our analysis with the use of martial law in contested territory, whether in the border states or the South. Such use of martial law was not unprecedented. During the American revolution, the Continental Congress reacted to threatened British attacks in Pennslvania and Delaware by authorizing a form of martial law: “[W]hereas, principles of policy and self-preservation require all persons who may be reasonably suspected of aiding or abetting the cause ofthe enemy may be presvented from pursuing measures injurious t the public weal,” Congres authorized state governors to arrest and confine disloyal residents.
Similarly, General Jackson imposed martial law in New Orleans when the city was threatened by the British during the war of 1812. He took martial law to extraordinary lengths, expelling the French consul (though France was a friendly power), aresting the author of a letter to the editor for repeating rumors that peace had arrived (wgich turned out to be true), and ultimaltely arresting a federal judge and district attorney for interferring wth these actions.
In a third pre-civil war instance of martial law, the issue ultimately reached the Supreme Court. In Luther v. Borden, the Supreme Court resoundingly upheld the use of martial law, in an opinion by none other than Chief Justice Taney. The case involved a dispute over the legitamacy of the state government in Rhode Island, a dispute that had been resolved in favor of the existing government. In putting down an effort to displace the government by a rival group, the governor had declared martial law. “[U]nquestionably,” Taney pronounced, “a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority.” The power to do so “is essential to the existence of every government, essential to the preservation of order and free institutions, and is necessary to the State of this Union as to any other government.” “This “[I] the government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the State, as to require the use of military force and the declaration of martial law, we see no ground upon which this court cn question its authority.” The case involved “a state of war, and the established government rights and useages of war to maintain itself, and to overcome nlawful opposition.” Hence, the military could arrest suspected supporters of the insurrection and could break into houses where such individuals might be hidden, all without a warrant. Without power to do this, martial law and the military array of the government would be mere parade, and rather encourage attack rather than repel it.”
...Luther was later strongly resaffirmed in Justice Holmes’s opinion in Moyer v. Peabody. In response to a violent miner’s strike, the gvernor had declared the affectted county to be in a state of insurrection and called out the national guard. He arrested the union’s president and held him for several months without trial. Justice Holmes saw no constitutional difficulty. “Of course,” holmes said, the “plaintiff’s position is that he had been deprived of his liberty withut due process of law.” But due process depends on the circumstances. Under federal law, the governor was authorized to call out the national guard in response to invasion or insurection.”That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whome he considers to stand in the way of restoring peace.”
“In any event, if prior congresssional authorization was needed, it probably did exist. In the special secession called by Lincoln, Congress ratified all of his orders relating to the miltia or armed forces. Since Lincoln’s suspension directive took the form of an authorization to General Scott, this may well have ratified at least past suspension in cases like Merryman. But, even before the special secession, Lincoln had already probably had whatever congressional authorization he needed, at least for the initial emergency suspension in Merryman.
This source of authority was the militia act. This theory was adopted in Ex parte Field, where the federal circuit held that the statutes empowering Lincoln to call out the militia also implicitly authorized him to declare martial law and hence to suspend habeas."
--"Lincoln's Constitution" by Daniel Farber
Your opinion really doesn't matter.
Walt
In any event, if prior congressional authorization was needed, it probably did exist. In the special secession called by Lincoln, Congress ratified all of his orders relating to the milItia or armed forces. Since Lincoln’s suspension directive took the form of an authorization to General Scott, this may well have ratified at least past suspension in cases like Merryman.Lincoln's Constitution, by Danel Farber, 2003, page 162.
From a review of the Congressional Globe (now called the Congressional Record) it is blatantly obvious that S-72, "to increase the pay of the privates in the regular Army, and of the volunteers in the service of the United States, and for other purposes," DID NOT RATIFY HABEAS CORPUS in any case whatever.
The Act of Congress which passed was a bill (S. No. 72) "to increase the pay of the privates in the regular Army, and of the volunteers in the service of the United States, and for other purposes."
There was a proposed Joint Resolution (SR-1) "To approve and confirm certain acts of the President of the United States for suppressing insurrection and rebellion." This resolution died without a vote, and fell into such disfavor that by the end of the session its opponents were the one's clamoring for a debate on the resolution. On August 6, 1861, the last day of the special session, Illinois Senator Trumbull disposed of it before it could suffer an embarrasing vote of rejection.
On August 5, Senator Wilson attempted to introduce a new bill, S-70, with the content quoted above. Senator Wilson noted that, "The bill avoids all questions with regard to the habeas corpus and other matters, and refers simply to the military appropriations; and it is necessary we should do this in order to place that subject upon the right ground." ... "It takes but a single point, and avoids the points of debate in the joint resolution that was before the Senate, and simply legalized the action of the President which we have already indorsed, by giving him the authority. It refers merely to a point which it is very necessary for us to consider."
Senator Pearce, who had objected to the introduction of this bill because it might have applied to additional matters was assured by Senator Fessenden, "Entirely so, to those acts only."
As soon as Senator Pearce withdrew his objection, Senator Saulsbury objected.
Senator Fessenden added that, "this is a mere matter of business, and avoids all disputed points."
Senator Saulsbury commented that, "If there is anything in this bill that looks to the toleration of the suspension of the writ of habeas corpus, I never will, under any circumstances, vote for it. Sir, that is the bulwark of the freedom of the citizen. If there is nothing in the bill, except to approve the calling out of volunteers --"
Senator King responded, "If the Senator will read it, he will see that there is nothing else in it."
Senator Fessenden commented, "There is nothing in the world in it except what relates to the Army and Navy volunteers. "
Senator Saulsbury withdrew his objection, Senator Powell renewed the objection, and S-70 died.
S-69, for Pay of the Troops came up and Senator Wilson proffered the quoted material as an amendment to that bill. This amendment was agreed to, the yeas and nays being 33-5.
The title of S-69 was amended to read, "A bill to increase the pay of the non-commissioned officers, musicians, and privates of the reglar Army, volunteers, marines, and seamen and ordinary seamen in the service of the United States, and for other purposes."
Senator Wilson asked "leave to introduce a new bill on the same subject, which is more restricted and guarded."
Senator Wilson then obtained leave to let S-69 lie on the table (die) and to introduce S-72 "to increase the pay of the privates in the regular Army, and of the volunteers in the service of the United States, and for other purposes."
Senator Wilson then moved to amend the bill by adding the above quoted material as an additional section of the bill. This amendment was approved with the yeas and nays being 37-5.
The bill was then reported to the Senate as amended, the amendments were concurred in, the bill was read a third time, and it passed. The yeas and nays are not shown.
It now had to go to the house, which it did on August 6, 1861.
The record in the House reads, "The bill was read a first and second time, and was ordered to a third reading. It was read the third time and passed." The yeas and nays are not shown.
Joint Resolution
To approve and confirm certain acts of the President of the United States for suppressing insurrection and rebellion.
This is the Joint Resolution which never came to a vote.
PAGE 438
PAY OF THE TROOPS [S-69]
Mr. WILSON. The Committee on Military Affairs and the militia have instructed me to report a bill (S. No. 69) to increase the pay of the non-commissioned officers, muscians, and privates of the regular Army, volunteers, marines, and seamen in the service of the United States.
The Bill was read a first and second time. It provides that the pay of non-commissioned officers, musicians, and privates of the regular Army and Volunteers, and of the marines, seamen, and ordinary seamen in the service of the United States, be increased by the addition thereto of two dollars per month for three years from and after the passage of this act, and until otherwise provided by law.
The PRESIDENT pro tempore. If there be no objection, the bill will be considered at the present time.
MR. KING. For the purpose of giving the Senator from Massachusetts an opportunity to propose an amendment, I move that it be laid over informally; and the Senator from Connecticut can then proceed with his report.
The PRESIDENT pro tempore. The Senator from New York objecting, the bill cannot be considered at the present time.
The bill was laid over.
PAGE 441
ARMY AND VOLUNTEER MILITIA [S-70]
Mr. WILSON. I ask leave to introduce a bill of which, no previous notice has been given; and I should like to have it considered now, for it is very important that it should be acted upon.
The bill (S. No. 70) in relation to the Army and volunteer militia of the United States was read a first time by its title.
The PRESIDENT pro tempore. The bill will now receive its second reading, if there be no objection.
Mr. PEARCE. I should like to hear the bill read at length before I consent that it shall have its second reading now. I do not think it is treating the Senate with proper consideration to have a bill read twice in one day before we know what it is. Let us see what it is; and if it be not objectionable, of course there will be no opposition to it.
The PRESIDENT pro tempore. The bill will be read at length for the information of the Senate.
PAGE 442
The Secretary read it as follows:
Be it enacted &c, 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 respect legalized and made valid, to the same intent and with the same effect as if they had been done under the previous express authority and direction of the Congress of the United States.
Mr. PEARCE. I must object to its second reading to-day.
Mr. FESSENDEN. I hope my friend from Maryland will hear what I have to say before he objects. This bill takes up a single point only in the resolution that was introduced into the Senate, and upon which there has been considerable debate. It refers simply to the proclamations that were made for, and the employment of volunteers. We have since authorized the employment of the volunteers. But some of the volunteers now make a point that although they have enlisted for three years, yet the President having had no authority at that time, and no legal authority having been conferred upon him by Congress, they are discharged, and cannot be held under that enlistment. That idea will occasion considerable difficulty, and it is necessary that we should, so far as we have the power, legalize the acts of the President upon that particular point. The bill avoids all questions with regard to the habeas corpus and other matters, and refers simply to the military appropriations; and it is necessary we should do this in order to place that subject upon the right ground.
Now, sir, with regard to this bill, there can certainly be no objection that Senators can raise to it, unless they are desirous that a difficulty -- I will no say that --- but unless they fail to see the force of the position in which we are placed with reference to many of these volunteers. I hope, therefore, the Senator from Maryland will withdraw his objection. It takes but a single point, and avoids the points of debate in the joint resolution that was before the Senate, and simply legalized the action of the President which we have already indorsed, by giving him the authority. It refers merely to a point which it is very necessary for us to consider.
Mr. PEARCE. If it refers purely and solely to the volunteers, which I did not exactly understand at first, I withdraw the objection.
Mr. FESSENDEN. Entirely so; to those acts only.
Mr. SAULSBURY. I renew the objection.
Mr. WILSON. The objection is renewed, and that settles it.
The PRESIDENT pro tempore. The Senator from Delaware interposes objection, and the bill cannot have its second reading.
Mr. FESSENDEN. I hope the Senator from Delaware will withdraw his objection. It is a matter of importance to pass the bill today.
Mr. SHERMAN. I will state, if it is in order, to the Senator from Delaware, that it is very easy to for the chairman of the Comittee on Military Affairs to get at what he desires in a more objectionable way, by taking up the resolution that we have been discussing, which contains this and other propositions. I am very glad this proposition has come up in this way, and I take it as a matter of course, that if this bill is passed, the other joint resolution will not be called up. It is much better to pass a bill of this kind upon which everybody can vote in the affirmative, that to take up that joint resolution, about which there is so much difference of opinion.
Mr. FESSENDEN. I will add that this is a mere matter of business, and avoids all disputed points.
Mr. SAULSBURY. My objection to the bill is that I have not seen it. In regard to the joint resolution originally submitted by the chairman of the Committee on Military Affairs, there were acts of the President of the United States that I approved. For instance: the proclamation calling out seventy-five thousand men, if it was necessary, to defend this capital, or to defend any portion of the territory of the United States. I was in favor of that. But I have not seen this bill; and I objected to it with a view --
Mr. KING. If the Senator from Delaware will allow me to make a single statement, he will perceive that his objection is not necessary to sustain any principle of his own; nor can it prevent the passage of this proposition.
The PRESIDENT pro tempore. The Senator from Delaware objecting to the second reading of this bill, it lies over under the rule of the Senate, and is not now before the Senate for consideration.
Mr. KING. I desire to state to the Senator from Delaware, which he had permitted me to do, that there is a bill on the table, which is intentionally there, which will be taken up, and which will be in order, to which this proposition will be moved as an amendment if this bill is not passed; but it is better that this single isolated proposition should go through by itself, disconnected with any other matter; and it will undoubtedly be agreed to by the House. I hope, therefore, the Senator from Delaware will not persist in his objection. This proposition will be placed on the other bill as an amendment, in a moment, if the objection is persisted in; but it is better that it should be passed as a separate, isolated proposition.
Mr. SAULSBURY. I should like to accomodate my friend from New York; certainly he is very accommodating himself; but if gentlemen on the other side will indulge me a moment, I will say why it was that interposed the objection.
Mr. President, in the earlier state of this session, a joint resolution was introduced approving, in general terms, the acts of the President of the United States. For one, had not such a resolution been introduced, I never would have attacked the President of the United States for his course. I am one of those men who stand in a peculiar position on this point. I am one of those who approve of certain acts of the President, and disapprove of others. As this bill seemed to be only a mode of getting rid of a direct vote upon that joint resolution, by way of substitute, without knowing what was contained in the bill. I felt it incumbent on me to object to its consideration. If there is anything in this bill that looks to the toleration of the suspension of the writ of habeas corpus, I never will, under any circumstances, vote for it. Sir, that is the bulwark of the freedom of the citizen. If there is nothing in the bill, except to approve the calling out of volunteers --
Mr. KING. If the Senator will read it, he will see that there is nothing else in it.
Mr. FESSENDEN. There is nothing in the world in it except what relates to the Army and Navy volunteers. The Senator from Maryland has just read it, and says he is perfectly satisfied.
Mr. SAULSBURY. Then on the assurance of the Senator from Maine, I will withdraw the objection.
Mr. POWELL. I renew the objection.
PAY OF THE TROOPS [S-69]
Mr. WILSON. I move to take up the bill I submitted a short time ago increasing the pay of the troops.
The motion was agreed to; and the Senate, as in Comittee of the Whole, proceeded to consider the bill (S. No. 69) to increase the pay of the non-commissioned officers, musicians, and privates of the regular Army, and volunteers, and marines, and seamen, and ordinary seamen, in the service of the United States.
* * *
Mr. WILSON. I now move to amend the bill by adding to it, as an additional section, the bill I sent to the chair a few moments ago:
And be it further enacted, 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.
Mr. BRECKINRIDGE. That sounds a little like our joint resolution to ratify and approve and make valid and legal all the acts of the President since the 4th of March; but one or two features of it are left out. If I may so speak, I observe the absence of one or two features.
Mr. WILSON. I will say to the Senator from Kentucky, if he will allow me, that there is an absence of one or two features of the joint resolution; but as soon as we get the vote on this proposition, I will gratify him if he desires it, by moving to take up the joint resolution for the purpose of having it voted on. I should like to have it acted on to-day.
Mr. BRECKINRIDGE. I was afraid that, in the condition of the public business, with the hurry which exists towards the close of the season, we might lose the opportunity to put our opinions on record upon that resolution. With his promise, however, to call it up for the vote of the Senate, I shall waive any observations on this amendment.
The amendment was agreed to.
The bill was reported to the Senate as amended, and the amendments were concurred in. The bill was ordered to be engrossed for a third reading, and was read the third time.
Mr. POWELL. I ask for the yeas and nays on the passage of the bill.
The yeas and the nays were ordered.
Mr. SAULSBURY. When substantially the same question was up before, I interposed an objection to its present consideration; but on the assurance of the Senator from Maine, I waived the objection. This amendment covers one thing that I cannot possibly vote for; and that is to legalize the act of the President in reference to the increase of the Army and Navy of the United States. I honestly think that that act was not legal, and that we cannot make it legal. Therefore, I shall be compelled to vote against this proposition.
The question being on the yeas and nays, resulted -- yeas 33, nays 5, as follows:
[Yeas and Nays are listed here in the record]
So the bill was passed.
[nc note: Passed as amended by the Senate. It still needed House approval of this amended version.]
On motion of Mr. WILSON, its title was amended by adding the words: "and for other purposes;" so as to make it read: "A bill to increase the pay of the non-commissioned officers, musicians, and privates of the reglar Army, volunteers, marines, and seamen and ordinary seamen in the service of the United States, and for other purposes."
PAGE 443
PAY OF THE TROOPS [S-69] [S-72]
Mr. WILSON moved to reconsider the vote by which the Senate concurred in the amendment of the House of Representatives to the bill (S. No. 69) to increase the pay of the non-commissioned officers, musicians, and privates of the regular Army, volunteers, marines, and seamen and ordinary seamen in the service of the United States, and for other purposes; and the motion was agreed to.
Mr. WILSON. I now move that the House amendment and the bill be ordered to lie on the table.
The motion was agreed to.
Mr. WILSON. I now ask leave to introduce a new bill on the same subject, which is more restricted and guarded.
Leave was granted to introduce the bill (S. No. 72) to increase the pay of the privates in the regular Army, and of the volunteers in the service of the United States, and for other purposes; which was read twice, and considered as in committee of the Whole. The bill 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.
Mr. WILSON. I move to amend the bill by adding the following as an additional section:
Sec. 3. And be it further enacted, 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.
Mr. BRECKINRIDGE called for the yeas and nays, and they were ordered; and being taken, resulted -- yeas 37, nays 5; as follows:
[Yeas and Nays are listed here in the record]
So the amendment was agreed to.
The bill was reported to the Senate as amended, and the amendments were concurred in. The bill was ordered to be engrossed for a third reading; and was read the third time, and passed.
[nc note: This is passage by the Senate; it still needed to go to the House.]
PAGE 456
INCREASE OF PRIVATES' PAY [S-72]
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 the 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 the Committee of Ways and Means a question in reference to this bill. I desire to know how this bill comes back here, after the House passed it yesterday?
Mr. STEVENS. This is a new bill.
The SPEAKER. This is an original Senate bill.
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 recde 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.
The SPEAKER. Is there any objction to taking up the bill?
Mr. CRISFIELD. I have objected to it.
PAGE 457
INCREASED PAY OF PRIVATES, ETC. [S-72]
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 antoher 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.
[nc note: This was passage of the bill, S-72]