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
[Walt] You're referring to 1861.
Of course I'm referring to 1861. The material you quoted, to which I responded, applies to 1861, and specifically to the special session of Congress called by Lincoln in 1861.
[ Walt 169 ]“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.
The actual language is:
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.
[Walt quoting Farber] 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.'
That only gives Lincoln protection from prosecution for his prior acts. It does not declare them legal.
[Walt quoting Farber] 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) :
We are talking about habeas corpus, not blockades.
"That a blockade de facto actually existed, and was formally declared and notified by the President on the 27th and 30th of April, 1861, is an admitted fact in these cases." The Prize Cases.
"As soon as the news of the attack on Fort Sumter, and the organization of a government by the seceding States, assuming to act as belligerents, could become known in Europe, to wit, on the 13th of May, 1861, the Queen of England issued her proclamation of neutrality, 'recognizing hostilities as existing between the Government of the United States of American and certain States styling themselves the Confederate States of America.' This was immediately followed by similar declarations or silent acquiescence by other nations." The Prize Cases
"After such an official recognition by the sovereign, a citizen of a foreign State is estopped to deny the existence of a war with all its consequences as regards neutrals. They cannot ask a Court to affect a technical ignorance of the existence of a war, which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the Government and paralyze its power by subtle definitions and ingenious sophisms." The Prize Cases
[Walt quoting Farber] "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.
And we are still talking about habeas corpus and not the Navy. No act has ever recognized the 1861 suspension of habeas corpus as legal.
[Walt quoting Farber] 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:
This is equally irrelevant. We are talking about habeas corpus.
[Walt quoting Farber] "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 quoting Farber] "Congress may not have intended this result."
Just how explicit does the Congress have to be? What is arguable about this? The bill says nothing about habeas corpus, and the congressional debate repeatedly makes explicitly clear it does not pertain to habeas corpus.
Senator 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.
What follows is the 1863 Habeas Corpus Indemnity Act. A primary purpose of this Act was to shield the persons carrying out the orders of the President from civil or criminal liability.
TEXT[IMAGES] (Page numbers in Congressional Globe)
Monday, March 2, 1863
Mr. Trumbull, from the committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof, submitted the following report:
The committee of conference on the disagreeing votes of the two houses on the bill (H. R. 591) to indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof, and the Senate's amendment thereto, having met, after full and free conference have agreed to recommend, and do recommend, to their respective houses that the Senate recede from their said amendment, and agree to the said House bill, amended to read as follows, to wit:
AN ACT relating to habeas corpus, and regulating judicial proceedings in certain cases. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof. And whenever and wherever the said privilege shall be suspended, as aforesaid, no military or other officer shall be compelled, in answer to any writ of habeas corpus, to return the body of any person or persons detained by him by authority of the President; but upon a certificate, under oath, of the officer having charge of any one so detained, that such person is detained by him as a prisoner under authority of the President, further proceedings under the writ of habeas corpus shall be suspended by the judge or court having issued the said writ so long as said suspension by the President shall remain in force and said rebellion continue.
Sec. 2. And be it further enacted, That the Secretary of State and the Secretary of War be, and they are hereby, directed, as soon as may be practicable, to furnish to the judges of the circuit and district courts of the United States and of the District of Columbia, a list of the names of all persons, citizens of States in which the administration of the laws has continued unimpaired in the said federal courts, who are now, or may hereafter be, held as prisoners of the United States, by order or authority of the President of the United States or either of said Secretaries, in any fort, arsenal, or other place, as state or political prisoners, or otherwise than as prisoners of war; the said list to contain the names of all those who reside in the respective jurisdictions of said judges, or who may be deemed by the said Secretaries, or either of them, to have violated any law of the United States in any of said jurisdictions, and also the date of each arrest--the Secretary of State to furnish a list of such persons as are imprisoned by the order or authority of the President, acting through the State Department, and the Secretary of War a list of such as are imprisoned by the order or authority of the President, acting through the Department of War. And in all cases where a grand jury, having attended any of said courts having jurisdiction in the premises, after the passage of this act, and after the furnishing of said list, as aforesaid, has terminated its session without finding an indictment, or presentment, or other proceeding against any such person, it shall be the duty of the judge of said court forthwith to make an order that any such prisoner desiring a discharge from said imprisonment be brought before him to be discharged; and every officer of the United States having custody of such prisoner is hereby directed immediately to obey and execute said judge's order; and in case he shall delay, or refuse so to do, he shall be subject to indictment for a misdemeanor, and be punished by a fine of not less than five hundred dollars and imprisonment in the common jail for a period not less than six months, in the discretion of the court: Provide, however, That no person shall be discharged by virtue of the provisions of this act until after he or she shall have taken an oath of allegiance to the government of the United States, and to support the Constitution thereof; and that he or she will not hereafter, in any way, encourage or give aid and comfort to the present rebellion, or the supporters thereof: And provided, also, That the judge or court before whom such person may be brought, before discharging him or her from imprisonment, shall have power, on examination of the case, and, if the public safety shall require it, shall be required to cause him or her to enter into recognizance, with or without surety, in a sum to be fixed by said judge or court, to keep the peace and be of good behavior towards the United States and its citizens, and from time to time, and at such times as such judge or court may direct, appear before said judge or court to be further dealt with, according to law, as the circumstances may require. And it shall be the duty of the district attorney of the United States to attend such examination before the judge.
Sec. 3. And be it further enacted, That in case any of such prisoners shall be under indictment or presentment for any offence against the laws of the United States, and by existing laws bail or a recognizance may be taken for the appearance for trial of such person, it shall be the duty of said judge at once to discharge such person upon bail or recognizance for trial as aforesaid. And in case the said Secretaries of State and War shall for any reason refuse or omit to furnish the said list of persons held as prisoners as aforesaid at the time of the passage of this act within twenty days thereafter, and of such persons as hereafter may be arrested within twenty days from the time of the arrest, any citizen may, after a grand jury shall have terminated its session without finding an indictment or presentment, as provided in the second section of this act, by a petition alleging the facts aforesaid touching any of the persons so as aforesaid imprisoned, supported by the oath of such petitioner or any other credible person, obtain and be entitled to have the said judge's order to discharge such prisoner on the same terms and conditions prescribed in the second section of this act: Provided, however, That the said judge shall be satisfied such allegations are true.
Sec. 4. And be it further enacted, That any order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defence in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, 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 defence may be made by special plea, or under the general issue.
Sec. 5. And be it further enacted, That if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court against any officer, civil or military, or against any other person, for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or any act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or any act of Congress, and the defendant shall, at the time of entering his appearance in such court, or if such appearance shall have been entered before the passage of this act, then at the next session of the court in which such suit or prosecution is pending, file a petition, stating the facts and verified by affidavit, for the removal of the cause for trial at the next circuit court of the United States, to be holden in the district where the suit is pending, and offer good and sufficient surety for his filing in such court, on the first day of its session, copies of such process and other proceedings against him, and also for his appearing in such court and entering special bail in the cause, if special bail was originally required therein, it shall then be the duty of the State court to accept the surety and proceed no further in the cause or prosecution; and the bail that shall have been originally taken shall be discharged. And such copies being filed as aforesaid in such court of the United States, the cause shall proceed therein in the same manner as if it had been brought in said court by original process, whatever may be the amount in dispute or the damages claimed, or whatever the citizenship of the parties, any former law to the contrary notwithstanding. And any attachment of the goods or estate of the defendant by the original process shall hold the goods or estate so attached to answer the final judgment in the same manner as by the laws of such State they would have been holden to answer final judgment had it been rendered in the court in which the suit or prosecution was commenced. And it shall be lawful in any such action or prosecution which may be now pending, or hereafter commenced, before any State court whatever, for any cause aforesaid, after final judgment, for either party to remove and transfer, by appeal, such case during the session or term of said court at which the same shall have taken place, from such court to the next circuit court of the United States to be held in the district in which such appeal shall be taken, in manner aforesaid. And it shall be the duty of the person taking such appeal to produce and file in the said circuit court attested copies of the process, proceedings, and judgment in such cause; and it shall also be competent for either party, within six months after the rendition of a judgment in any such cause, by writ of error or other process, to remove the same to the circuit court of the United States of that district in which such judgment shall have been rendered; and the said circuit court shall thereupon proceed to try and determine the facts and the law in such action, in the same manner as if the same had been there originally commenced, the judgment in such case notwithstanding. And any bail which may have been taken, or property attached, shall be holden on the final judgment of the said circuit court in such action, in the same manner as if no such removal and transfer had been made, as aforesaid. And the State court from which any such action, civil or criminal, may be removed and transferred as aforesaid, upon the parties giving good and sufficient security for the prosecution thereof, shall allow the same to be removed and transferred, and proceed no further in the case: Provided, however, That if the party aforesaid shall fail duly to enter the removal and transfer, as aforesaid, in the circuit court of the United States, agreeably to this act, the State court, by which judgment shall have been rendered, and from which the transfer and removal shall have been made, as aforesaid, shall be authorized, on motion for that purpose, to issue execution, and to carry into effect any such judgment, the same as if no such removal and transfer had been made: And provided, also, That no such appeal or writ of error shall be allowed in any criminal action or prosecution where final judgment shall have been rendered in favor of the defendant or respondent by the State court. And if in any suit hereafter commenced the plaintiff is nonsuited or judgment pass against him, the defendant shall recover double costs.
Sec. 6. And be it further enacted, That any suit or prosecution described in this act, in which final judgment may be rendered in the circuit court, may be carried by writ of error to the Supreme Court, whatever may be the amount of said judgment.
Sec. 7. And be it further enacted, That no suit or prosecution, civil or criminal, shall be maintained for any arrest or imprisonment made, or other trespasses or wrongs done or committed, or act omitted to be done, at any time during the present rebellion, by virtue or under color of any authority derived from or exercised by or under the President of the United States, or by or under any act of Congress, unless the same shall have been commenced within two years next after such arrest, imprisonment, trespass, or wrong may have been done or committed, or act may have been omitted to be done: Provided, That in no case shall the limitation herein provided commence to run until the passage of this act, so that no party shall, by virtue of this act, be debarred of his remedy by suit or prosecution until two years from and after the passage of this act.
LYMAN TRUMBULL,
J. COLLAMER,
Managers on the part of the Senate.THADDEUS STEVENS,
JNO. A. BINGHAM,
Managers on the part of the House of Representatives.
The Senate Debate goes from page 1459 to 1477 of the Congressional Globe. The process at the end is rather ugly.
That bill started out in the House like this. A comparison will show what the Senate refused to accept.
H.R. 591
37th Congress
3rd SessionIN THE SENATE OF THE UNITED STATES
December 9, 1862
Read twice and referred to the Committee on the JudiciaryAN ACT
To indemnify the President and other persons for suspending the privilege of the writ of habeas corpus, and acts done in pursuance thereof.
Whereas since the fourth day of March, eighteen hundred and sixty-one, the United states have been in an insurrectionary and rebellious condition, and the public safety has required that the privilege of the writ of habeas corpus should be suspended; and whereas during that time the privilege of the said writ has been several times suspended by the President of the United States, and several arrests and imprisonments have taken place under and in consequence thereof; and whereas there is not entire unanimity of opinion as to which branch of the government possesses the constitutional power to declare such suspension: Therefore --
Be it enacted by the Senate and House of Representatives of the United States of America in congress assembled,
That all such suspensions, arrests, and imprisonments, by whomsoever made or caused to be made, under the authority of the said President, shall be confirmed and made valid; and the said President, Secretaries, head of departments, and all persons who have been concerned in making said arrests, or in doing or advising any such acts as aforesaid, are hereby indemnified and discharged in respect thereof, and all indictments, and information, action, suits, prosecutions, and proceedings whatsoever commended, or to be commenced, against the said President, or any of the persons aforesaid in relations to the acts and matters aforesaid, or any of them, are hereby discharged and made void.
Sec. 2. And be it further enacted, That during the existence of this rebellion the President shall be, and is hereby, invested with authority to declare the suspension of the privilege of the writ of habeas corpus, at such times and in such places, and with regard to such persons, as, in his judgment, the p7ublic safety may require.
Passed the House of Representatives December 9, 1862.
Attest: EM. ETHERIDGE, Clerk