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."
You're referring to 1861.
I got this e-mail from Dr. Farber.
"Dear Mr. Miller
-- Thanks for your note. Let me see if I can help clear up some of the confusion. As in many cases of the period, the opinion in ex parte Field has a lot of language setting out opposing arguments, which the judge later rejects. Here's the ultimate conclusion drawn by the Court:
"The principle established by these cases determines, the president has the power, in the present military exigencies of the country, to proclaim martial law, and, as a necessary consequence thereof, the suspension of the writ of habeas corpus in the case of military arrests. It must be evident to all, that martial law and the privilege of that writ are wholly incompatible with each other." I'm e-mailing you the full opinion, however, so you can judge for yourself.
In terms of the statutory authorization, the specific authorization for habeas suspension didn't pass until 1863 (see p. 159) But that authorization was retroactive in the sense that Congress gave immunity to the president and his subordinates for all previous arrests: The fourth section is as follows: 'That any order of the president, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any such seizure, arrest, or imprisonment made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of congress, and such defense may be made by the special plea or under the general issue.'
I'm also e-mailing you a Supreme Court opinion that deals with this statute.
More generally, the president's past military orders were ratified by Congress in the summer of 1861. The Prize Cases, for example, refer to the statute ratifying the blockade of the South (and thereby creating a state of war) :
"Since the capture [of the ships involved in the case], Congress has recognized the validity of these acts of the President. The Act of Aug 6, 1861, ch. 63, sec. 3, legalizes, among other things, the proclamations, acts and orders of the President respecting the navy.
This includes the blockades, and the orders respecting captures." (The statute is quoted on p. 138 of the book.) The dissent in the Prize Cases also states that Congress had recognized a state of war with the South:
"no civil war existed between this Government and the States in insurrection till recognized by the Act of Congress 13th of July, 1861" (my italics). As I say in the book, it is arguable that the language used by Congress in these laws had the effect of ratifying past military orders dealing with habeas, though Congress may not have intended this result. In any event, these various congressional actions make it clear that Congress approved of the war and authorized Lincoln to fight it."
Walt